Southern Clams Limited v Chief Executive of the Ministry of Fisheries
[2003] NZCA 24
•13 February 2003
| IN THE COURT OF APPEAL OF NEW ZEALAND | CA154/02 |
| SOUTHERN CLAMS LIMITED |
| Appellant |
| AND | WESTHAVEN SHELLFISH LIMITED |
| First Respondent |
| AND | CHIEF EXECUTIVE OF THE MINISTRY OF FISHERIES |
| Second Respondent |
| AND | MINISTER OF FISHERIES |
| Third Respondent |
CA186/02
| SOUTHERN CLAMS LIMITED | ||
| Appellant | ||
| AND | WESTHAVEN SHELLFISH LIMITED | |
| First Respondent | ||
| AND | CHIEF EXECUTIVE OF THE MINISTRY OF FISHERIES | |
| Second Respondent | ||
| AND | MINISTER OF FISHERIES | |
| Third Respondent | ||
| AND | TE RUNANGA O NGAI TAHU | |
| Fourth Respondent | ||
CA190/02
| CHIEF EXECUTIVE OF THE MINISTRY OF FISHERIES |
| First Appellant |
| AND | MINISTER OF FISHERIES |
| Second Appellant |
| AND | WESTHAVEN SHELLFISH LIMITED |
| First Respondent |
| AND | TE RUNANGA O NGAI TAHU |
| Second Respondent |
| AND | SOUTHERN CLAMS LIMITED |
| Third Respondent |
CA194/02
| TE RUNANGA O NGAI TAHU |
| Appellant |
| AND | WESTHAVEN SHELLFISH LIMITED |
| First Respondent |
| AND | CHIEF EXECUTIVE OF THE MINISTRY OF FISHERIES |
| Second Respondent |
| AND | MINISTER OF FISHERIES |
| Third Respondent |
| AND | SOUTHERN CLAMS LIMITED |
| Fourth Respondent |
| Hearing: | 11 and 12 December 2002 |
| Coram: | Keith J Tipping J Glazebrook J |
| Appearances: | P A McCarthy and A Puata for Chief Executive Ministry of Fisheries and Minister of Fisheries |
| Judgment: | 13 February 2003 |
| JUDGMENT OF THE COURT DELIVERED BY KEITH J |
Table of Contents Para No
The 1992 moratorium on new fishing permits........................................................ [1]
The 2001 moratorium applied to defeat applications.............................................. [8]
Judicial review granted.......................................................................................... [10]
Does the 2001 moratorium prevent fishing in new areas?.................................... [14]
Was the application for the special permit unlawfully refused?........................... [37]
Result on the substantive appeals.......................................................................... [53]
Procedural matters................................................................................................. [54]
The 1992 moratorium on new fishing permits
Westhaven Shellfish Limited (Westhaven) has long wished to extend its harvesting of cockles from Farewell Spit to other beaches, in particular to Purakanui Inlet on the Otago Peninsula. Officers of the Ministry of Fisheries have declined the relevant applications and Westhaven has responded, first, by asking the Ministry, unsuccessfully, to review its refusals and, second, by taking Court action. On 11 October 2001, this Court held that the Ministry had acted unlawfully in refusing certain applications : Westhaven Shellfish Ltd v Chief Executive of Ministry of Fisheries [2002] 2 NZLR 158. In summary we said this:
[69] … Westhaven has established that the Ministry’s policy has been developed and applied to its applications in an unlawful way, essentially because the policy both in its statement and in its application has unlawfully fettered the discretion conferred by the Act, the regulations or both. There should be a declaration to that effect. That declaration will provide the basis for the future statement of policies and their future application.
[70] In its amended statement of claim Westhaven also sought orders setting aside the various decisions on its applications to fish for cockles in other areas and directing the chief executive to redetermine the application in accordance with law. It follows from the declaration set out in the preceding paragraph that the various decisions must also be set aside.
[71] We do not however make orders for redetermination of the applications, for one main reason. The fishing years in question are in the past, the appropriate relief is future looking and the parties’ efforts should better be directed to the future.
The Ministry decisions under challenge in the earlier case were made by reference in particular to s63(13) of the Fisheries Act 1983, enacted on 18 December 1992. That provision, set out in full in para [15], is commonly said to impose a moratorium on the grant of permits. In broad terms, it prevented new entrants into commercial fishing except by purchase or leasing of individual transferable quota (ITQ). The moratorium was introduced under urgency to try to stop or at least to control the race for quota history. Under the Fisheries Amendment Act 1986, which introduced the quota management system (QMS) into law, once a species became subject to the QMS the provisional catch history by reference to which ITQs were calculated on a proportionate basis was the catch of each applicant in “previous years”, fixed by the Minister when bringing the fish into the scheme – that is “previous” to the declaring of the QMS (ss28E(1) and 28C(3)). The ITQ calculation proportionate to each fisher’s catch history could be altered if it were “unfair having regard to the [applicant’s] commitment to, and dependence on, the taking of [that] fish ... at the date of the declaration” (s28E(3)). The discretionary character of that power of allocation and its importance were reflected in the establishment by the 1986 Act of a Quota Appeal Authority to decide challenges to provisional quotas determined by the Ministry (ss28A and 28H–28J).
Because the qualifying years for those species which in 1986 were still to come into the QMS were likely to be in the future, the original ITQ legislation was seen as providing an incentive to enter the fishing industry and to build up catch history as a basis for quota once a QMS was declared. The 1992 amendment was one response.
Another was the specification in the 1996 Act (foreshadowed in 1994 when the Bill was introduced) that the 1990-91 and 1991-92 fishing years were to be qualifying years for ITQ (Fisheries Act 1996 s33(c)). The 1996 Act also removed the power to alter the calculation based on commitment and dependence and consequentially abolished the Quota Appeal Authority. The more absolute characteristics of the new provision were capable of producing inequities, as was recognised in the Parliamentary process leading to the 1996 Act:
We do not recommend any change to the main qualifying years [for QMS]. Some inequities may result from allocating catch history from catch in the main [1990-91 and 1991-92] years. However, it is imperative that the qualifying years be in the past to prevent the disastrous effects of allowing people to fish to obtain catch history. (Fisheries Bill – as reported from the Primary Production Committee No 63-2 p xvii).
Under the 1992 moratorium only those who had had a fishing permit on 30 September 1992 (that is about 10 weeks before the moratorium was introduced) and who had caught fish under it in the previous two years could be issued with a permit in the future (s63(13)(a)); further, the permit could authorise the taking only of those species taken as a target species (and not as a by catch) under the authority of that permit in the period (s63(13)(b)). That bar on new entrants did not apply to tuna nor to species subject to the QMS. The latter exception is to be explained by the fact that ITQ could be traded and leased (s28Q). They were and are considered to be valuable property. That very quality of transferability facilitated, indeed encouraged, new entry into the fishing industry. It followed from the nature of ITQ that a person who had obtained quota was entitled to a fishing permit (s63(2) as enacted in 1986).
On its face, the limit imposed by s63(13) did not apply, to refer to the terms of s63(4) as it was in force from 1986 until 2001, to conditions relating to areas nor, for that matter, to quantities, methods, vessels and types and amounts of fishing gear, to mention some of the matters that could be the subject of conditions. That is to say, the restriction on the race for quota history was not a comprehensive one.
The Ministry nevertheless, at first purportedly as a matter of law (based on its interpretation of s63(13)) and later as a matter of policy (which this Court held in 2001 unlawfully fettered the power conferred by the 1983 Act), refused applications by Westhaven, like other permit holders, to amend the permit to allow it to fish in new areas for the same species. The relevant statements of policy and the decisions taken under them are set out in paras [19]-[35] of the 2001 judgment.
The 2001 moratorium applied to defeat applications
Westhaven made a new application, following our judgment of 11 October 2001, to vary its permit to allow it to take cockles in Otago. As from 1 October 2001, the legislative statement of the moratorium had changed. It now appears in s93 of the Fisheries Act 1996 which with other provisions in Part 6 of the Act, headed Access to Fisheries, was brought into force on that date by an Order in Council made on 9 July 2001 (after argument in the earlier case). The Ministry took the view, in refusing Westhaven’s renewed application, that the new moratorium provision, set out in para [14] below, now included the area limit. That is to say, it thought that the position the Ministry had taken under the 1992 provision was now the law. This position was essentially based on the replacement of the word “species” in the old provision by the word “stock” in the new one, with area, in its view, being inherent in the word “stock” as used in s93. For the Ministry, that interpretation was supported both by the common understanding of the term in fisheries contexts and by the definition of “stock” introduced into the 1996 Act:
2 Interpretation
(1) In this Act, unless the context otherwise requires,—
…
stock means any fish, aquatic life, or seaweed of one or more species that are treated as a unit for the purposes of fisheries management (emphasis added)
Based on that view of the new section, the Chief Executive of the Ministry refused Westhaven’s application to vary its permit to allow it to harvest cockles in Purakanui Inlet. He also refused an application for a special permit sought for the same purpose. That refusal was based on the Chief Executive’s view of the scope of his power to grant special permits to correct “administrative error”. In its present judicial review proceedings Westhaven challenged those two decisions. It also challenged decisions of the Minister of Fisheries relating to the bringing into the QMS of cockles in Quota Management Area (QMA) 3, the Otago area which includes Purakanui.
Judicial review granted
In the High Court, Durie J held that the Chief Executive of the Ministry had acted unlawfully in refusing Westhaven’s application to harvest cockles in the Otago area. He stated the broad proposition that “the word ‘stock’ substitutes for the word ‘species’ [in the 1983 Act] throughout the 1996 Act”. Section 93 had not introduced the area limit into the moratorium. It followed that the new provision did not prevent Westhaven from applying to extend its operations to Otago. He accordingly set the Ministry’s refusal aside and directed the Chief Executive to consider Westhaven's application on its merits. He also set aside that part of the Ministerial Gazette notice that introduced cockles in area 3 into the QMS and directed the Minister not to proceed with the introduction of cockles in area 3 into the QMS until thirty days after Westhaven’s application in that area had been determined. The Judge did however reject Westhaven’s challenge to the refusal of the special permits. As he noted, a ruling on that matter was not necessary, given the ruling he had made on the substantive decision.
At the hearing in this Court, time did not allow counsel and the court to address the issue of remedies, particularly those relating to the QMS declaration. Counsel for Westhaven noted that the Crown had not included relief in its points on appeal and had made only limited reference to it in its written submissions. The Crown did however include relief in its notice of appeal; and Southern Clams Ltd, which fishes cockles in area 3 and which stands to benefit from that fishery coming into the QMS, appealed against the judgment of Durie J as a whole. That matter of relief remains to be resolved, if necessary. In that context counsel agreed that the High Court’s direction to the Minister not to proceed with the introduction into the QMS of area 3 cockles be amended by replacing the expression “until thirty days after Westhaven’s application has been determined” by “until further order of the Court of Appeal”.
The principal issue in the substantive appeals (CA186, 190 and 194/02) is whether the Judge was wrong in finding that the Chief Executive erred in law in declining Westhaven’s application to vary the conditions of its permit to allow it to harvest cockles in area 3. Westhaven also seeks to uphold the substantive judgment on an alternative ground. It submits that Durie J was in error in rejecting its challenge to the refusal of the Chief Executive to issue the special permit it sought.
Certain procedural matters raised by Southern Clams by appeal (CA154/02) and by Ngai Tahu by application are dealt with briefly at the end of this judgment. On 9 December 2002 the Court heard and allowed a related appeal by Westhaven and Talley’s Fisheries Ltd and set aside a recall judgment made by Durie J on 25 September 2002: Talley’s Fisheries & Anor v Chief Executive of Ministry of Fisheries & Ors CA202/02, 9 December 2002.
Does the 2001 moratorium prevent fishing in new areas?
Section 93 of the 1996 Act reads as follows:
93 Qualifications for holding fishing permit and moratorium
(1)Subject to section 93A, no fishing permit authorising the taking of fish, aquatic life, or seaweed for the time being not subject to the quota management system under this Act shall be issued to any person unless either—
(a) All of the following apply:
(i)On the 30th day of September 1992, that person held a current fishing permit under section 63 of the Fisheries Act 1983 in respect of stocks not subject to a quota management system under that Act; and
(ii)During the period commencing on the 1st day of October 1990 and ending with the close of the 30th day of September 1992, that person lawfully took fish, aquatic life, or seaweed under the authority of the fishing permit held by that person; and
(iii) The chief executive is satisfied that the fish, aquatic life, or seaweed taken by that person, during that period were—
(A)One or more of the stocks named in the fishing permit held by that person; and
(B) Were caught as a target stock (other than by catch); or
(b)A fishing permit was issued to that person under section 2(2) of the Fisheries Amendment Act 1994.
(2)A fishing permit issued under subsection (1) of this section shall not authorise a person to take a stock that is for the time being not subject to the quota management system under this Act or Part 2A of the Fisheries Act 1983, unless either—
(a) The stock—
(i)Is of the same species as one or more of the stocks referred to in subsection (1)(a)(iii)(A) of this section that were caught as a target stock (other than by catch) during the period referred to in subsection (1)(a)(ii) of this section; and
(ii)Was named in the fishing permit held by that person on the 30th day of September 1992; or
(b)In the case of a fishing permit issued to a person referred to in subsection (1)(b) of this section, the stock was named on the permit issued to that person under section 2(2) of the Fisheries Amendment Act 1994.
(3)In satisfying himself or herself on any matter under this section, the chief executive shall only have regard to information from fishing records or returns duly completed and provided before the 15th day of October 1992 in the prescribed manner or in accordance with requirements made under section 66(3) of the Fisheries Act 1983.
(4) This section does not apply to tuna.
Section 93A, mentioned at the beginning of subs (1), empowers the Chief Executive to issue a permit, despite the limits imposed by s93, to related persons on the death of the permit holder. It is not relevant in this case. Section 2(2) of the 1994 Amendment Act, mentioned in subs(1)(b) and (2)(b), empowered the issue of a permit in place of special permits issued in defined circumstances between 18 December 1992 and 30 September 1994. That power is not immediately relevant but the anachronistic use of the word “stock” in s93(2)(b) is significant for literal arguments based on the precise wording of s93; the usage is anachronistic in that the word “species” rather than “stock” was primarily used in the 1983 Act and in particular the word “stock” does not appear in the 1992 moratorium provision set out next.
Section 93 replaced s63(13) of the 1983 Act under which from 18 December 1992 (the date of assent):
Notwithstanding any other provision of this section [which confers powers to grant fishing permits] … the following provisions shall apply:
(a) No fishing permit shall be issued in respect of any species of fish (other than tuna), aquatic life, or seaweed, that is not for the time being subject to a quota management system (being established by or under Part 2A or Part 2B of this Act), except to a person who held a fishing permit that was in force on the 30th day of September 1992 and lawfully took fish, aquatic life, or seaweed under a fishing permit held by that person at any time during the period commencing on the 1st day of October 1990 and ending with the close of the 30th day of September 1992:
(b)Where a fishing permit may be issued to such a person, a permit shall only authorise the taking of those species caught as a target species (not being by catch) under the authority of the permit held by that person during the period specified in paragraph (a) of this subsection:
(c) In the case of any current fishing permit issued before the commencement of this subsection in respect of any species (other than tuna) not subject to a quota management system (as so established), the Director-General shall revoke the permit or the relevant conditions of the permit, as the case may require, if satisfied that the holder did not lawfully take that species as a target species (not being by catch) at any time during the period specified in paragraph (a) of this subsection:
(d)For the purposes of establishing whether or not a permit holder lawfully took any fish during the period specified in paragraph (a) of this subsection, the Director-General shall only accept information from fishing records or returns duly completed and furnished before the 15th day of October 1992 in the prescribed manner or in accordance with requirements made under section 66(3) of this Act.
The provisions have much in common:
(1)they do not apply if the fish are subject to the QMS (s63(13)(a) and s93(1));
(2)they do not apply to tuna (s63(13)(a) and s93(4));
(3)applicants for a permit must have had a permit on 30 September 1992 (s63(13(a) and s93(1)(a(i));
(4)they must also have caught fish under the permit between 1 October 1990 and 30 September 1992 (s63(13)(a) and s93(1)(a)(i));
(5)as a target and not as a bycatch (s63(13)(b) and s93(1)(a)(iii));
(6)they state separate prohibitions on the issue of permits (s63(13)(a) and s93(1)(a)) and on the authority the permits confer (s63(13)(b) and s93(2)), with the second prohibition limiting the taking to that which was caught as a target catch under the 1992 permit.
The provisions do of course differ in the respect emphasised by the Crown, Westhaven and Ngai Tahu. The new provision uses the word “stock” in most of the above elements, by contrast to the 1992 provision which refers to “fish” and “species”. One feature of the drafting that may be seen as limiting the significance of the change in wording, at least in this particular provision, has already been mentioned : the new term is applied anachronistically to the 1992 provision and to permits in force on 30 September 1992. Such permits were issued under legislation which primarily referred to fisheries, fish and species rather than to “stock”. The permits, we assume, would often have imposed area conditions as provided for in s63(4) of the 1983 Act. The only permit in evidence before us, the relevant Westhaven permit, did just that. Issued on 7 January 1992 and valid until 30 September 1992, it authorised
The taking of Cockles (Chrone Stutchburyi) by the method of Mechanical Harvester is allowed in QMA 7 between the Pukawau River and Puponga River.
The quantity is restricted to 300 tonnes per annum.
No harvesting is to take place where Eel Grass (Zostera) is growing.
The area condition does refer to a quota management area, but as we indicated in the first Westhaven case that reference appears to be simply as a matter of convenience (para [64]); the reference does not have legal significance since in 1992 there was no QMS for cockles in Golden Bay or indeed anywhere – and accordingly no QMA for them there or anywhere. The real definition of the area is fixed by the rivers at either end (less the area covered at the relevant time by eel grass). The reference to the QMA adds nothing at all to the acts authorised by the permit or to the conditions it imposed, and it could not of course have appeared in area conditions in fishing permits granted under the 1983 Act and its predecessor before the introduction of the QMS in 1986.
Both provisions deal with two matters (identified in para [16](6) above) : they first prohibit the issue of permits in the stated circumstances and then state that a permit shall authorise only certain takings. The 1996 drafting introduces confusion since (a) s93(2) of the 1996 Act refers to permits issued under subs (1) when they are not issued under that provision but under s92 : the point of subs (1) after all is to place a moratorium on the grant of licences; and (b) the repetition in subs (2) of the terms of subs (1) is not exact. In particular, s93(1)(a)(iii)(A) appears to equate “fish” and “stock” (contrary to the Crown’s argument) while s93(2)(a)(i) appears not to (because of the inclusion of “of” in (i): “is of the same species …”).
Those difficulties with the particulars of the wording of s93 itself, together with its anachronistic reference to stock (in the 1992 context), indicate the limits of a strictly literal approach to the meaning of “stock” in the provision. But we do of course have to move beyond s93, to take account of the definition of “stock” in s2(1) and to read s93 in context and by reference to its purpose.
One aspect of the purpose of s93 can be conveniently mentioned here. If its purpose were, as the Crown says, to widen the moratorium and to prevent a race for quota based on extended areas of fishing it might have been expected that a separate measure to that effect would have been introduced and passed in 1994 or 1995 with some expedition; or that at least the provision would have come into force on the initial commencement date of the 1996 Act of 1 October 1996 and not be left to the making of an Order in Council which fully five years later brought s93 into force as just one of the sections of Part 6 about Access to Fishery.
The passing of the 1992 measure only 24 days after it came into Parliament is itself an example of the urgency attendant on the passing of a moratorium statute. So too is Parliament’s extension of the initial moratorium period which was to expire on 30 September 1994 by an Act passed on the following day and in force from the beginning of that day. The Minister of Fisheries when introducing the amendment Bill providing for the extension on 13 July 1994 mentioned the further and more comprehensive fisheries bill, to be introduced before the end of the year, to provide the mechanism for bringing additional species into the QMS (1994 NZPD 2831). There was not the slightest suggestion then that the substantive scope of the moratorium might be broadened by the amendment. All that was being done was to remove its time limit and make it perpetual in its exact same terms at a time when the Ministry well knew from Petromont Holdings Ltd v Director-General of Agriculture and Fisheries and Simunovich Fisheries Ltd, High Court, Auckland M986/93, 7 September 1993, that the area condition was not part of the moratorium. That continuation in late 1994 of the substantive scope of the moratorium makes it all the less likely that the comprehensive Bill which was in immediate prospect and which would be the subject of a lengthy parliamentary process would at some indeterminate time in the future extend that substantive scope.
That comprehensive Bill, introduced in December 1994, included the first of three versions of s93. It is convenient to mention the drafting history of that provision at this point. In the end the history by itself appears to help only in the negative sense that it does not indicate a purpose of broadening the moratorium. The Bill as introduced in 1994 would in fact have narrowed the moratorium : a permit could be granted in respect of non QMS stocks if the applicant held a permit on 30 September 1992 and in the previous two years lawfully took fish under the permit as target species (cl 150(2)); (cf para [16](6) above). That is to say, the provision was not stock (or species) specific. By contrast the Bill included in the interim report of the Primary Production Committee tabled in Parliament in 1995 was : it reintroduced the essence of s63(3)(b), limiting the authority under the new permit to that which was caught in the qualifying period under the old. For the appellants the significant change from s63(13) is that this 1995 version, like its predecessor in the original Bill and the final s93, uses the word “stock”. Like the first version and unlike s63(13) it did not exclude tuna. The third and final version of the moratorium provision (cl 93) did make that exclusion and indeed was in that, as in all other respects, identical to s93 as enacted. The select committee said this about the moratorium:
The permit moratorium
The introduction of the QMS came as a result of the previous permit, licence and input control system’s inability to control fishing within a sustainable framework. It is intended to introduce stocks into the QMS as soon as practicable to enable sustainable utilisation. The continuation of the permit moratorium prevents uncontrolled development until this can happen.
Fishing industry submissioners argued that the current exemption for tuna permits should be included in the Bill. Tuna is a highly migratory species. The Minister has been actively encouraging an expansion in domestic harvesting capacity in the tuna fishery. There has been a significant number of new entrants into the fishery since the permit moratorium was imposed. We believe that these fisheries should not be excluded from the tuna fishery. We recommend that the existing exemption for tuna fishers from the permit moratorium be included as subclause 93(4). (Fisheries Bill – As reported from the Primary Production Committee No 63-2 pxxv, emphasis added.)
The emphasised passage does not indicate that the moratorium is to be broader. Rather it is simply to be “continued”.
A further factor supporting the simple continuity of the moratorium is the presumption against the retrospective effect of legislation. While Westhaven’s power to apply for an area extension under the law as it was in force before 1 October 2001 may be seen as an expectation rather than a right or interest in terms of s17(1)(b)of the Interpretation Act there is the broader principle against the retrospective effect of legislation stated in s7. More significantly, had area conditions in fact been extended before 1 October 2001, as the law allowed, the Crown’s interpretation would have affected an existing right. Clear legislative wording would be required to achieve that.
Does the introduction of the word “stock”, as defined in s2(1), do that? The question must of course directed to s93. We emphasise at this stage that an answer that leaves the area scope of s93 the same as that of s63(13) would not of itself give a limited meaning to “stock” when that word is used elsewhere in the Act. That particularity arises from the commonplace that the same word can have different meanings in different contexts, a point emphasised by the standard words appearing at the beginning of the definition provision of s2(1):
In this Act, unless the context otherwise requires, …
That particularity is relevant to the Crown’s concern, expressed in the course of the hearings, about the possible impact of a ruling in favour of Westhaven beyond the specific situation of s93. Its concern focussed for instance on Durie J’s equating of “stock” in the new Act with “species” in the old (para [10] above). The Crown referred especially to ss39 and 40 concerning the eligibility for, and the calculation of, provisional catch history which are based on the fisheries entitlement to the particular “stock … controlled exclusively by means of individual catch entitlements [ICE]” (in s2(1)) immediately before the QMS notice was given. If the word “stock” in those provisions meant “species”, the provisions could not operate in many circumstances and with great difficulty in others. The principal definition of ICE is a catch limit for a commercial fisher set by a permit, licence, regulations or an allocation notice apportioning an annual amount of any stock that can be taken exclusively by that fisher. That definition requires an annual amount to be fixed for the “stock” and its allocation among the fishers. Under s39 the control must be “exclusive”. Accordingly a control which applies to a species in just one part of New Zealand waters would not qualify were “stock” understood as meaning “species” without any area concept. That would be contrary to the terms and scheme of the Act and particularly the QMS provisions. A similar point can be made about the power under s11 to set a sustainability measure for a “stock” by fixing a catch limit for it. There is a related power to make regulations providing for the management and control of commercial fishing by way of ICE and authorising the chief executive to allocate the ICE.
Those provisions, like others to which Mr Scott for Southern Clams referred, plainly proceed on the basis in terms of the statutory definition of “stock” that the fish or species in question is “treated as a unit for the purposes of fisheries management”. The fisheries management “unit”, as elaborated next, also has area as an essential element. We did not understand Mr Cooke for Westhaven to contend otherwise as a general proposition. Rather, he emphasised, as this judgment has, that it was the meaning of s93 and of “stock” in that provision that was in issue rather than the meaning of “stock” throughout the statute or in major provisions of it.
The emphasis in the statutory definition on fisheries management units reflects the common understanding of the word “stock” in the fisheries context. That understanding supports the opinion which we have just expressed about the meaning of “stock” in ss11, 39 and 40. Mr McCarthy for the Crown helpfully took us to a Glossary prepared by the Food and Agriculture Organisation of the United Nations. It included this definition of “fish stock”:
The living resources in the community or population from which catches are taken in a fishery. Use of the term fish stock usually implies that the particular population is more or less isolated from other stocks of the same species and hence self-sustaining. In a particular fishery, the fish stock may be one or several species of fish but here is also intended to include commercial invertebrates and plants. (FAO (1997): Fisheries management. FAO Technical Guidelines for Responsible Fisheries, 4:82 p.)
And this for “stock”:
A group of individuals in a species occupying a well defined spatial range independent of other stocks of the same species. Random dispersal and directed migrations due to seasonal or reproductive activity can occur. Such a group can be regarded as an entity for management or assessment purposes. Some species form a single stock (eg southern bluefin tuna) while others are composed of several stocks (eg albacore tuna in the Pacific Ocean comprises separate Northern and Southern stocks). The impact of fishing on a species cannot be determined without knowledge of this stock structure. (Commonwealth of Australia (1997): align="center">Comment
In theory, a Unit Stock comprises all the individuals of fish in an area, which are part of the same reproductive process. It is self-contained, with no emigration or immigration of individuals from or to the stock. On practical grounds, however, a fraction of the unit stock is considered a “stock” for management purposes (or a management unit), as long as the results of the assessments and management remain close enough to what they would be on the unit stock. (Commonwealth of Australia (1997): type="1">
By contrast the definition of “species” in the Glossary does not include a spatial or area component:
Group of animals or plants having common characteristics, able to breed together to produce fertile (capable of reproducing) offspring, and maintaining their ‘separateness’ from other groups. (Commonwealth of Australia (1997): >
Fish Base 2000 : A Global Information System on Fishes contained similar definitions and contrasts in its Glossary:
StockGroup of individuals of a species which can be regarded as an entity for management or assessment purposes; a separate breeding population of a species; term used to identity a management unit of fishery species.
Species“Groups of actually (or potentially) interbreeding natural populations which are reproductively isolated from other such groups” … group of animals or plants having common characteristics and able to breed together to produce fertile offspring, so that they maintain their ‘separateness’ from other groups; the basic rank of biological nomenclature.
The 1995 Straddling and Highly Migratory Fish Stocks Agreement, supplementary to the UN Convention on the Law of the Sea, makes the same point. It does not regulate the aggregate of worldwide populations of a species; rather its concern is with the particular stock, the particular population, in an area which straddles a coastal state’s exclusive economic zone and the high seas. We quote just one provision:
Article 8(5) Where there is no subregional or regional fisheries management organization or arrangement to establish conservation and management measures for a particular straddling fish stock or highly migratory fish stock, relevant coastal States and States fishing on the high seas for such stock in the subregion or region shall cooperate to establish such an organization or enter into other appropriate arrangements to ensure conservation and management for such stock and shall participate in the work of the organisation or arrangement. (emphasis added)
That understanding of the area component of “stock” can also be seen at work in the provisions of Part IV of the Act regulating the Quota Management System and the associated schedules to the Act. Those provisions indeed operate in their own terms and involving both species and a defined area, without there being any reason to refer to the definition. That “species” and “stock” are in general different also gains support from many provisions of the Act that use both words : eg ss2(1) (“fisheries resources”, “long term viability”), 2(2)(a), 16(1)(b), 24(2), 25(a)(iii), 59(1)(a), (d), (e), 60(1)(c), 198(1)(b)(ii) … . It must be said however that several provisions by using the words “stock” and “area” may raise the opposite inference, although area controls (over all species) can be distinguished from “stock” controls involving just one species. But there is a limit to the value of the close analysis of particular words and provisions of this Act. It does not provide a model of drafting to be imitated.
The question may indeed be asked whether this is not a case where the definition is not actually helpful in interpreting the Act but is essentially a description of a result for some if not all of the usages of the word. It is also a somewhat confusing statement of that result since it may be contended that the final phase (“that are treated as a unit …”) may qualify only the expression “more [than one] species”. Durie J appears to support this view when he says that “scientific analysis (or popular opinion) may show or suggest that several species are in fact together”. That reading would equate stock and species:
Stock means any
· fish, aquatic life, or seaweed of one … species, and
· any fish, aquatic life, or seaweed of … more [than one] species that are treated as a unit for the purpose of fisheries management.
That reading however denies the established understanding of “stock” in fisheries management and would make important provisions of the Act unworkable.
Although the matter is not before us for decision, we accordingly agree with the Crown that Durie J erred in holding as a general proposition that the “natural meaning” of “stock” did not in this context include a spatial element and that throughout the 1996 Act the word “stock” replaced “species” in the 1983 Act (para [10] above). In the 1996 Act, it often does include the spatial element, particularly in the central provisions relating to the QMS. But it does not follow that the Crown’s appeal succeeds.
Rather, we return to the immediate situation with which we are concerned. We emphasise that that concern is not with the general meaning and significance of “stock” in the Fisheries Act 1996. It is with the particular question whether the scope of the 1992 moratorium was broadened by s93 of the 1996 Act. For the reasons given in the earlier part of the judgment, we conclude that it was not. The “context” of s93 “requires” a meaning of “stock” other than that stated in s2(1). Accordingly, the Crown appeal fails. We agree with Durie J’s ultimate conclusion that the Ministry made an error of law in refusing to consider Westhaven’s application on its merits and that it remains to be considered.
Was the application for the special permit unlawfully refused?
Following this Court’s judgment in October 2001, Westhaven, in addition to making the application to allow it to harvest cockles in Otago, applied for a special permit for the same purpose. Since we have held that the Ministry acted unlawfully in refusing its application for the reason it gave, it is not necessary for us to consider the refusal of the special permit. Westhaven, it will be recalled, raised the matter in a notice of intention to support the judgment on alternative grounds. Like Durie J, however, we do consider the matter for completeness.
Section 97(1)(c) of the 1996 Act empowers the Chief Executive to issue a special permit for a purpose approved by the Minister. Section 64(1)(c) of the 1983 Act conferred the same power. (Section 328 of the 1996 Act carries forward approvals given under the 1983 Act.) On 20 December 1999 the Minister of Fisheries approved a list of special permit purposes under s64(1)(c). He did that by confirming, with some amendments, purposes approved in earlier years. The Ministry in the introduction to its paper said this to the Minister:
5. A number of approved purposes have now been superseded by new legislation, or are either irrelevant or inconsistent with present fisheries management policy. This paper seeks your decision to confirm a selected number of purposes, and not confirm a number of superseded, redundant or inconsistent purposes. Accordingly, the chief executive will be provided with an updated list of available purposes that you have approved as of the present date. Unless otherwise noted, no special permit purpose is recommended for discontinuation where a special permit under that purpose presently exists.
The purpose which is relevant in this case reads:
x) To allow administrative errors by the Ministry which result in the loss of access or disadvantage to client fishing operations to be corrected for the period up to 30 September 2004. [The emphasis indicates the change made to the earlier approval.]
The relevant part of the Ministry’s memorandum was as follows:
To allow administrative errors by the Ministry which result in the loss of access or disadvantage to client fishing operations to be corrected (27/4/93)
47. This purpose was particularly relevant following the implementation of the December 1992 permitting moratorium in early 1993. Commercial fishers gave more attention to their fishing permit authorisations on application and receipt of fishing permits. Several permitting errors that were identified were addressed in the interim through the issue of special permits under this purpose. These were subsequently replaced by fishing permit authorisations in accordance with s2(2) of the Fisheries Amendment Act 1994. There are no remaining cases of special permit holders provided by fishing authority for non-quota fisheries under this purpose (all have been replaced with fishing permit authorisations). The purpose has been rarely used in recent years.
48. However, s329(5) of the Fisheries Act 1996 does contemplate the possibility of the issue of a special permit to rectify an administrative error, as may arise from a successful s329 review of a permitting decision. The option is similarly provided to the chief executive to replace the special permit with an appropriate fishing permit, notwithstanding other provisions within both the Fisheries Act 1983 and Fisheries Act 1996 which specify the eligibility criteria for the issue of a fishing permit. Accordingly, it is possible that this purpose may still be required if any remaining s329 review requests are successful, and such a remedy is required.
Recommended for confirmation
Mr McCarthy referred us back to the 1993 documentation relating to the Ministerial approval of that time. As we indicated in the hearing, we do not find that material helpful. The Minister most recently exercised the power conferred on him by the legislation in 1999. That approval replaces the 1993 decision and the question for the Ministry under s97(1)(c) and the approval is simply whether the application for a special permit is “to allow administrative errors by the Ministry which result in the loss of access or disadvantage to client fishing operations to be corrected”. The other material, including that in the 1999 document, is merely explanatory and background. It is not part of the approval which the law authorises. We also recall the advantage, as seen by the Ministry, of having a new consolidated set of approved purposes (para [38]). Moreover, it appears that Westhaven knew nothing of that earlier paper and approval and indeed at the relevant time in early 2002 had been informed only of the fee waiver policy which began
A waiver has previously been considered appropriate when addressing/ rectifying administrative errors by the Ministry, which have led to the loss of access or disadvantage to fishers.
This failure to communicate the Minister’s approved purposes is unfortunate. The approval has legal effect under s97(1)(c) and should be readily available to the industry.
The Ministry on 9 April 2002 refused the application for a special permit. The conclusion to the paper reads as follows:
Conclusion
38In order to grant the application, the Ministry would need to accept:
· That the decisions to decline Westhaven’s applications for cockle permits in new areas were wrong (not just set aside by the Courts)
· That they were administrative errors, in terms of the ministerial purpose
· That denying a permit to the new cockle stocks will result in hardship for Westhaven and no increase in fishing effort for cockles, in terms of the ministerial special purpose
· That issue of a special permit will further the purpose of the Act, bearing in mind the permit moratorium, the Ministry’s management strategy for cockles and issues regarding interim management of the cockle fishery.
39Each step is contingent on satisfaction of the preceding step. For the reasons given above, Westhaven’s application ought not to be granted, since it does not establish that the decisions to decline require correction by the issue of a special permit for administrative error.
That led to a recommendation that the application be declined, a recommendation that was accepted. The reasons are a mixture, the second (at least) denying that the Ministry has power in the circumstances and the last (at least) going to the merits of a grant. While the Ministry paper does not indicate the ground on which the decision was taken, the official who made it has testified that he refused on the (second) ground that there was no administrative error. We accordingly limit our consideration of Westhaven’s challenge to that ground.
Durie J did not consider that the Ministry had erred in deciding on that basis:
[57] … “administrative error” in this context seems directed to clerical error or oversight. The moratorium applies according to that recorded on a fisher’s permit of 1992 but if the record is obviously wrong then section 97, when read with section 329, may provide a remedy. Whether or not “administrative error” is limited to errors of record I think it goes too far to extend it to errors of law. Depending on the circumstances a judgment may be recalled if a judgment proves nugatory through unexpected factors or there may be further declaratory proceedings but I do not think section 97 can be used to the same end.
The Ministry’s discussion of this point is elaborate. It draws on and applies the 1993 paper which included this passage:
Cases that fall into this category also need to meet the following criteria:
(a)That no significant increase in fishing effort would result (ie the fisher was already operating in the fishery); and
(b)That the lack of a permit has resulted, or would result, in genuine hardship to the fisher concerned (ie that they would be deprived of a certain portion of their fishing income).
That is not part of the 1999 approval or even the supporting paper and, as indicated, we are having no regard to it. The statement in any event cannot be reconciled with the legislation since “administrative errors” may well have prevented increases in fishing – that is after all the likely context of applications for a special permit being made, in terms of the Minister’s approval, “to correct the loss of access or disadvantage”, and with that may well come loss of income to the fisher. That policy, if still in effect, would be invalid as inconsistent with the Act; it is also not consistent with the purpose actually approved by the Minister. The Ministry’s reasoning continued:
30. A successful application for a special permit would be contingent on Westhaven establishing the relevant decisions were administrative errors. The decisions referred to by Westhaven do not appear to be an administrative errors of the nature contemplated by the by the special purpose. There is no suggestion that the applications or decisions were incorrectly recorded in a database misaddressed or overlooked, or that there was a “… failure to issue or the loss of a non-ITQ fishing permit based on an incorrect record of permit history”. Rather, the decisions were intentional on the part of the Ministry, and as such cannot be described as administrative errors. They do not therefore appear to come within the scope of this Ministerial purpose.
Again the quote is from the 1993 paper which on that matter does not purport to state the qualifying circumstances in a comprehensive way.
The expression “administrative error” is a general one. We can see no reason why it should be confined to clerical errors or the like. In terms of effect, there is no difference for Westhaven between it being refused a special permit because records for the qualifying 1990-92 years were mislaid or because the Ministry wrongly applied its “area” requirement. The words “administrative” or “administration” are frequently used and understood in broad terms : consider the “administration” of the Act by the Ministry; the “Bolger administration” which was responsible for introducing the latest fisheries bill; a “matter of administration” in the Ombudsmen Act 1976 which has always been understood as including issues of law; or indeed “administrative law”.
We accordingly conclude that the Ministry construed its power to grant special permits too narrowly and, if necessary, the refusal would be declared invalid on that basis alone.
As we have said, we need not consider the other grounds set out in the Ministry paper. We do however note that it said this about s93:
14. Since the hearing in the Court [of Appeal in the first Westhaven case] but before its decision was issued, the balance of the Fisheries Act 1996 has been commenced, which includes the new moratorium on fishing permits under s93. This prohibits the issue of a permit to anyone who did not have the stock being applied for on their permit as at 30 September 1992. At the hearing the Ministry drew to the Court’s attention that this would present a statutory bar to Westhaven obtaining permits for new stocks of cockles, but the effect of this provision is not addressed in the Court’s decision.
This passage (which contains the interpretation rejected in the earlier part of this judgment) also indicates that the Ministry understood its role too narrowly since s93, even if interpreted in the way indicated, did not stand in the way of a special permit. Section 329(5) of the Act is explicit about that:
(5)Notwithstanding anything in section 93 of this Act or in section 63(13) of the Fisheries Act 1983, if a person has been or is granted a special permit under section 64(1)(c) of that Act or section 97(1)(c) of this Act, being a special permit granted to rectify an administrative error, the following provisions shall apply:
(a)The chief executive may from time to time, but is not obliged to, issue to the person an appropriate fishing permit in place of the special permit:
(b) Upon the commencement of a fishing permit issued to any person under this subsection, the special permit held by that person shall be deemed to be revoked
(emphasis added)
We would also note that the first ground for refusal given by the Ministry paper appears to read the approved purpose very narrowly. It is true that this Court did not say that Westhaven was entitled to a permit. Rather, it ruled that the Ministry had acted unlawfully in refusing to consider the merits of the application. While it might be said that those errors did not result in “the loss of access to the fishery” in a direct sense, at least there was “disadvantage” to Westhaven since had the merits been considered the permit may well have been granted.
Result on the substantive appeals
The substantive appeals are dismissed. As noted earlier, we have not addressed the issues relating to remedies. Costs (including Westhaven’s costs in the recall appeal) will be fixed if the Court is asked to resolve the issues relating to remedies in the judgment on that matter. If no such request is made, costs can be the subject of memoranda.
Procedural matters
On 3 July 2002 Hammond J made the following order on applications for joinder by Southern Clams and Ngai Tahu:
[24] In the result, there will be order for the joinder of Southern Clams, on the basis that it be added as the fourth defendant. Ngai Tahu will be the third defendant. Southern Clams will be entitled to address the court on relief, and it is required to obtain the leave of the trial Judge if it wishes to address any other matters in the proceeding. The following conditions will apply to the joinder of Southern Clams:
· That it will not file a statement of defence;
· That its position as to relief be set up in a substantive affidavit which will be filed in accordance with the timetable already ordered by the court; in relation to Ngai Tahu, and;
· The plaintiff’s response to Southern Clams contentions as to relief, will be provided by affidavit in reply in accordance with the same timetable.
Ngai Tahu and Westhaven had agreed that Ngai Tahu be joined on the following terms:
That Ngai Tahu only wishes to address questions as to the relief, and would need to apply to the Court for leave if it wished to address any other matters arising in the proceeding; and
That Westhaven’s consent is without prejudice to its contention as to the appropriate identification of parties, including particularly its positions in relation to Southern Clams Limited.
[The remaining three terms paralleled those in the Southern Clams order.]
…
Southern Clams appealed and Ngai Tahu applied to be added as a party to the appeals and to be given a right to make submissions and be heard.
At the hearing on 9 December 2002 we indicated that we would leave open the question of participation in the substantive hearing later in the week. The Southern Clams appeal could not of course produce a practical result, the hearing in the High Court hearing having already been completed.
In the event we had real assistance from counsel for Southern Clams and, although more briefly, from counsel for Ngai Tahu. Although we are not entering into the merits of the procedural appeal, we do consider that Southern Clams, given its different and very real rights and interests, should have been recognised as having the right to make submissions on substance (as indeed Durie J allowed on one limited matter).
The formal order on the procedural appeal is that it is dismissed as moot. The payment made for security for costs is to be returned. There is no order for costs.
Solicitors
Chapman Tripp Sheffield Young, Wellington for Southern Clams Ltd
Rout Milner & Fitchett, Nelson for Talley’s Fisheries Ltd
Oceanlaw New Zealand, Nelson for Westhaven Shellfish Ltd
Daniell-Smith Stallard & Hunter, Nelson and Philips Fox, Wellington for
Te Runanga O Ngai Tahu
Crown Law Office, Wellington for the Ministry of Fisheries & Minister of Fisheries
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