Te Ohu Kai Moana Trustee Limited v Minister of Oceans and Fisheries

[2021] NZHC 2573

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2021-485-535

[2021] NZHC 2573

UNDER

Judicial Review Procedure Act 2016

BETWEEN

TE OHU KAI MOANA TRUSTEE LIMITED

Applicant

AND

MINISTER OF OCEANS AND FISHERIES

First Respondent

CHIEF EXECUTIVE OF MINISTRY FOR PRIMARY INDUSTRIES

Second Respondent

On the papers:
Counsel:	J P Ferguson and C Conroy-Mosdell for Applicant N C Anderson for Respondents
Judgment:	29 September 2021

JUDGMENT OF CHURCHMAN J

The application

[1]        At 4.07pm on 28 September 2021, the applicant filed by email, a number of documents:

(a)notice of proceeding;

(b)statement of claim by way of application for judicial review;

(c)interlocutory application for interim orders;

TE OHU KAI MOANA TRUSTEE LIMITED v MINISTER OF OCEANS AND FISHERIES & ANOR [2021]

NZHC 2573 [29 September 2021]

(d)memorandum of counsel for the applicant in support of application for interim orders;

(e)joint memorandum of counsel for the applicant and respondents regarding interim orders; and

(f)draft form of the interim orders for sealing (in the event that the interim orders were made as sought).

[2]        The substantive proceedings are an application for judicial review under the Judicial Review Procedure Act 2016.

[3]        The decision sought to be reviewed relates to the Quota Management System (QMS). QMS was originally enacted in 1986 through Part IIA of the Fisheries Act 1983. QMS quantifies the amount of fish that may be taken by quota owners in any one year by reference to a declared total allowable commercial catch (TACC) which is a subset of the declared total allowable catch (TAC).

[4]        The specific subject matter of the substantive proceedings is the snapper fishery (SNA8) for the Quota Management Area (QMA) located off the West Coast of the North Island (extending from Northland down to Wellington).

[5]        The Chief Executive of the Ministry for Primary Industries (the second respondent) provided the Minister of Oceans and Fisheries (the first respondent) with a Final Advice Paper (FAP) for SNA8 in September 2021.

[6]It is alleged that the FAP was defective in a number of respects.

[7]        It is alleged that the first respondent made final decisions in respect of the review of sustainability controls for the fishing year commencing 1 October 2021 and that by an undated decision letter sent to the applicant and other quota owners on or about 24 September 2021, advised that he had decided to:

(a)increase the TAC for SNA8 to 365,000 tonne; and

(b)increase the TACC for SNA8 to 1,600 tonne.

[8]        It is this decision that is attacked in the judicial review proceedings. The relief sought in those proceedings is:

(a)a declaration that the Minister’s decision to set a TAC and TACC for SNA8 that results in a proportional decrease in the share of the Settlement Quota held by iwi is unlawful;

(b)an order setting aside the line item headed SNA8 in the Schedule 1 to the Fisheries (Total Allowable Catch, Total Allowable Commercial Catch and Deemed Value Rates) Amendment Notice (No 2) 2021;

(c)a declaration that the Minister reconsider his decision to set a TAC and TACC for SNA8 that results in a proportional decrease in the share of the Settlement Quota held by iwi and giving such directions as to that reconsideration in terms of s 17 of the Judicial Review Procedure Act 2016 as the Court thinks just; and

(d)costs.

The interim application

[9]        The applicant seeks interim orders by way of declaration that pending the determination of the application for judicial review, the first and second respondents must not:

(a)take any further action that is or would be consequential upon setting or varying the Total Allowable Catch for the SNA8 fish stock under    s 13 of the Fisheries Act 1996; and

(b)take any further action that is or would be consequential upon setting or varying the Total Allowable Commercial Catch for the SNA8 fish stock under s 20 of the Fisheries Act 1996.

[10]      The interim application also seeks various timetable orders and directions as particularised in [1.2] of that application.

[11]      The applicant seeks urgency on the basis that the decisions to which the challenged orders relate are to take effect after Thursday 30 September 2021 in respect of the fishing year commencing 1 October 2021.

The parties’ joint position

[12]      Copies of all proceedings in this matter have been provided on a Pickwick basis to counsel for the respondents and counsel for both parties have filed a joint memorandum.

[13]      That memorandum consents to the making of interim orders in the terms sought.

[14]      The memorandum records that the parties seek the following directions by consent that:

(a)the applicant serves all holders of s 28N rights within the SNA8 fishery with a copy of these proceedings by 8 October 2021;

(b)the respondents file a statement of defence by 5 November 2021;

(c)any holder of s 28N rights within the SNA8 fishery wishing to be added as a respondent, or joined as an interested party or intervenor in this proceeding, files and serves a notice of appearance or other document indicating the nature of their desired involvement by 19 November 2021;

(d)the parties file a joint memorandum of counsel by 10 December 2021

advising on:

(i)the progress of the discussions between the parties; and

(ii)the further timetabling directions sought in relation to the proceedings;

(e)if required or requested, a judicial telephone conference be scheduled in relation to both this proceeding, the PAU 5B proceeding (CIV-2018- 485-729) and SKI 2 proceeding (CIV-2020-485-533) in the week of 13 December 2021.

[15]      The applicant has filed a draft interim order for sealing which contains the various directions referred to above.

Outcome

[16]      Accordingly, by consent, I make the orders set out in the draft interim order filed for sealing.

Churchman J

Solicitors:

Kāhui Legal, Wellington for Applicant Crown Law, Wellington for Respondents