Squid Fishery Management Company Ltd v Minister of Fisheries

[2004] NZCA 24

IN THE COURT OF APPEAL OF NEW ZEALAND

CA39/04

BETWEENSQUID FISHERY MANAGEMENT COMPANY LIMITED

Appellant

ANDMINISTER OF FISHERIES

First Respondent

ANDCHIEF EXECUTIVE OF MINISTRY OF FISHERIES

Second Respondent

Hearing:22 March 2004

Coram:McGrath J
Glazebrook J
O'Regan J

Appearances:  B A Scott and G T Carter for Appellant

U R Jagose and R E Schmidt for First and Second Respondents

Judgment:22 March 2004 

JUDGMENT OF THE COURT DELIVERED BY McGRATH J

[1]       On 27 February 2004 France J delivered judgment in the High Court dismissing the appellant’s application for judicial review of a decision of the first respondent, who is Minister of Fisheries, made under s15 of the Fisheries Act 1996.  The first respondent’s decision imposed a maximum allowable fishing-related mortality limit of 62 sea lions in the squid fishery known as SQU6T. The appellant represents those entitled to fish for squid in the fishery concerned.  It has appealed against the High Court’s judgment and the appeal has been scheduled for hearing on 5 April 2004. 

[2]       Having applied unsuccessfully to the High Court for a declaration in the nature of a stay, to the effect that the first respondent and the Chief Executive of the Ministry of Fisheries (the second respondent) should not take any action pursuant to the first respondent’s decision to impose that limit pending the outcome of the appeal, the appellant now brings a fresh application for interim orders before this Court under Rule 9 of the Court of Appeal (Civil) Rules.

[3]       In particular the appellant seeks orders as follows:

1A declaration that, pending the determination of the appeal against the judgment of the High Court at Wellington delivered by Justice France on 27 February 2004, set down for 5 April 2004, the first and second respondents will not:

1.1  take any action that is or would be consequential on the exercise of the first respondent’s statutory powers under section 15 of the Fisheries Act 1996 to prohibit fishing in the quota management area known as SQU6T;

1.2  institute any proceedings, civil or criminal, in connection with the matters to which this appeal relates and in particular proceedings to enforce any fishery closure purported to be given effect by any exercise of the first respondent'’ statutory powers under section 15 of the Fisheries Act 1996 to prohibit fishing in the quota management area known as SQU6T.

2The declaration referred to in 1 above is subject to the condition that no vessel operating in the SQU6T fishery may make more than two tows per calendar day.

[4]       France J heard argument in support of the appellant’s application to the High Court for a stay on 18 March 2004 and delivered judgment on 19 March dismissing the application.  In that judgment she concluded that the orders sought were not necessary to preserve the appellant’s appeal rights.  Rather, the effect of the interim orders would be to improve the appellant’s position.  The Judge said:

[30]   In terms of the overall justice of the matter, the Court is in something of a “catch 22”.  Stopping the fishing season now would adversely impact on the applicant.  However, as against that, the position for the respondents in terms of the fruits of the judgment they have obtained would be irretrievably lost if the interim orders were made even if the number of tows per day is reduced.  I accept in this context that the applicant’s appeal is not a frivolous or vexatious one and nor can it be characterised as hopeless.

…

And, after referring to the principle that in such a case the Court should approach the case on the broad principle of what it can do in its best endeavours to avoid injustice, and to balance the risk of doing an injustice to either party France J. said:

[32]   On balance, it would not be in the interests of justice for the respondents to irretrievably lose any possible benefit from the judgment in a situation where it is possible that the applicant will in fact be able to resume fishing should its appeal be successful.

[33]   Similar considerations apply looking at the justice of the matter overall.

[5]       Section 15(2) of the Fisheries Act provides as follows:

In the absence of a population management plan, the Minister may, after consultation with the Minister of Conservation, take such measures as he or she considers are necessary to avoid, remedy, or mitigate the effect of fishing-related mortality on any protected species, and such measures may include setting a limit on fishing-related mortality.

[6]       We were informed from the Bar that for a number of years the Minister of Fisheries has been using that power to set a limit on fishing related mortality in the squid trawl fishery operating in the area around the Auckland Islands in the subantarctic.  That area contains populations of sea lions which are protected species in terms of s15(2).

[7]       As part of the Operational Plan for the 2004 squid season the Minister set a mortality limit of 62 sea lions acting under s15(2). It had been recognised by the appellant that when the limit was exceeded the Minister was likely to promulgate a notice under s15(5) of the Act to prohibit all or any fishing or fishing methods in the area to ensure that the fishing related mortality limit for the season was not exceeded.  Immediately following the decision of the High Court on 19 March 2004 the first respondent has issued such a notice, the relevant part of which provides:

A person must not fish for squid in the Auckland Islands Squid Fishery by the method of trawling during the period beginning on the commencement of this notice and ending with the close of 30 September 2004.

[8]       The circumstances of the industry are that the squid fishing season extends over approximately three months starting no earlier than 1 February, by agreement, and concluding when the squid have gone, usually by late April or early May.

[9]       The position accordingly is that those whom the appellant represents are presently constrained by the notice from fishing and, unless interim relief is given, will be for at least the next two weeks, pending the judgment or further order of this Court.

[10]     The appellants complain that although the decision as to the mortality limit was made in the 2004 Operational Plan, the then Minister failed to provide written reasons for his decision until 4 December 2004 despite requests that he do so.  Judicial review proceedings were then filed prior to Christmas, and an urgent fixture for hearing of them allocated by the High Court with the outcome in relation to the judgment of 27 February set out above. 

[11]     It is common ground that the Court’s jurisdiction derives from r9 of the Court of Appeal (Civil) Rules 1997 which provides as follows:

9Stay of proceedings

(1)Either the Court below or the Court of Appeal may order a stay of execution or stay of proceedings under the decision appealed from, or grant other interim relief by order or (if the Crown is the respondent) by declaration, pending the determination of the appeal.

(2)An order referred to in subclause (1) may relate to execution of the whole or part of a judgment or order, or to a particular form of execution, and may be made subject to such conditions as to the giving of security and other conditions as the Court making the order thinks fit to impose.

(3)Unless an order referred to in subclause (1) otherwise provides, an appeal does not operate as a stay of execution or of proceedings under the decision appealed from.

(4)Unless the Court appealed from otherwise directs, an appeal does not invalidate any intermediate act or proceeding.

[12]     We have heard the appellant’s application today as a matter of urgency to determine whether an interim declaration should be issued.  Counsel have referred us to a number of authorities.  That most in point is NZ Fishing Industry Association v Minister of Fisheries [1997] NZLR 316 which was decided by a Full Court of this Court. Interim orders were sought by the appellants to prevent implementation of a decision by the Minister to fix the total allowable catch for snapper in a quota management area at a reduced tonnage level. The Court made two observations of importance to this case. At p318 the Court said:

The fact that the challenge to this decision has been considered and rejected in the High Court must be accorded due weight.  On the other hand there is a right of appeal and there is no suggestion that the appeals are frivolous or less than genuine.  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.

And later at p319:

The hardship for the industry is to be weighed against the consequences for the fishery in the event that fishing to the level of a TACC of 4938 tonnes continues from the present time to the end of the fishing year.

[13]     Unfortunately the NZ Fishing Industry Association decision was not cited to France J last week.  As a result the weight we give to the judgment of the High Court on the interim order applications is less than it otherwise would have been.

[14]     The position as we see it is that a genuine appeal has been brought which is clearly not frivolous.  Beyond that it is impracticable for this Court to address the merit of the arguments that will be raised on 5 April.  If the notice remains in force those represented by the appellant will suffer losses of $4million for each of the two weeks until this Court can hear the substantive appeal.  Although there is an opportunity to fish after 5 April if the appellant is successful there is a real risk that the loss will not be recovered.  Those losses and their impact on those who are involved in the squid fishing industry accordingly have to be weighed against the important consequences in relation to the protected mammals to which the Minister’s notice is directed.

[15]     If the effect of the notice is suspended by the Court in the interim, according to the guidelines that are followed, it is to be expected that 24 sea lions will be lost in the course of the fishing.  That figure takes account of the limited number of tows that are to be permitted if the application is granted.  The consequences will not however be irretrievable when the matter is considered on a medium term basis.  If the effect is judged to make that appropriate the Minister will be able to take account of the impact in a future season when fixing a new limit under s15.

[16]     We acknowledge that if we make an interim declaration there will accordingly be a set back for the Minister’s wish to protect the sea lion population in the quota area but the impact will not be irretrievable.  The period concerned is only two weeks.  We must weigh that against the substantial financial cost to the industry which might well not be retrieved through later fishing in the area given the variable nature of the season and the short period before the squid are gone.

[17]     The Ministry has suggested that various steps could have been taken by the appellant’s members to proceed with a lesser loss of sea lions than the 62 limit now reached.  We have discussed those in detail with counsel and are not persuaded that anything the interests concerned might have done would have had a significant effect.

[18]     In the end we have decided that the need for protection of the sea lion population over the next 2 weeks is outweighed by the substantial financial cost to the members of the industry and those working with them.

[19]     Accordingly we are satisfied that the First Respondent’s notice should be suspended from operation until the hearing of the substantive proceeding is concluded.

[20]     We accordingly make interim declarations to that effect and in terms of the application including the conditions that it incorporated.  These declarations will be reviewed at the conclusion of the hearing on 5 April 2004.  Costs are reserved.

Solicitors:
Chapman Tripp, Wellington for Appellant
Crown Law Office, Wellington for First and Second Respondent