BACK COUNTRY HELICOPTERS LIMITED & ORS v THE MINISTER OF CONSERVATION HC WN CIV 2012-485-806

BACK COUNTRY HELICOPTERS LIMITED & ORS v THE MINISTER OF CONSERVATION HC WN CIV 2012-485-806 [6 May 2013]IN THE HIGH COURT OF NEW ZEALANDWELLINGTON REGISTRYCIV 2012-485-806[2013] NZHC 982BETWEEN BACK COUNTRY HELICOPTERSLIMITEDALPINE DEER GROUP LIMITEDMOUNT HUTT HELICOPTERSLIMITEDALPINE HUNTING ADVENTURESLIMITEDNEW ZEALAND MOUNTAINHUNTING LIMITEDSOUTH PACIFIC SAFARIS (NZ)LIMITEDPlaintiffsAND THE MINISTER OF CONSERVATIONDefendantHearing: 31 October & 1 November 2012Counsel: C S Withnall QC with D P Robinson for PlaintiffsP A McCarthy with J A Somers for DefendantJudgment: 6 May 2013JUDGMENT OF THE HON JUSTICE KÓSTable of ContentsIntroduction [1]Facts 1: Background [7]Aerially assisted trophy hunting [7]Other aerial activities and recreational/ground hunters [14]Public criticism of AATH [19]Statutory framework and history [21]Facts 2: The plaintiffs [31]Facts 3: The concession application process prior to the 2011 general election [39]2004-2009 concessions [39]Wild Animal Recovery Operations Framework – March 2009 [41]2009 season [45]2010 season rollover [49]2011 season rollover [61]Events leading up to the 2011 general election [66]Facts 4: The concession application process after the 2011 general election [77]A confidence and supply agreement [78]Opening shots are fired [82]The Associate Minister meets with the AATH industry [85]Delegation to the Associate Minister [90]Concession officer's report [92]The Associate Minister decides [98]Facts 5: Post-decision events [109]Issues [114]Four important preliminary points [118]Issue 1: Was the decision unlawful by reason of predetermination? [123]Submissions [123]Relevant legal test [129]Did the Associate Minister predetermine the applications? [139]Conclusion [145]Issue 2: Was the term of the concessions irrational? [147]Submissions [147]Legal test [148]Was the Associate Minister's decision irrational? [153]Conclusion [162]Issue 3: Did the Associate Minister consider irrelevancies or act for animproper purpose? [163]Submissions [163]Discussion [165]Conclusion [173]Issue 4: Was there a breach of the Bill of Rights 1688? [174]Submissions [174]Discussion [174]Conclusion [181]Issue 5: Did the Associate Minister breach the plaintiffs' legitimateexpectation that concessions would be granted for a 10 year term? [182]Submissions [182]Discussion [183]Conclusion [190]Issue 6: If the answer to any of the preceding issues is affirmative, whatrelief if any is appropriate? [191]Summary of reasons [192]Result [193]____________________________________________________________________Introduction[1] Between February and July each year hunters travel from foreign shores to New Zealand to hunt trophy deer, tahr, chamois and other species. Here they hire guides and, time being short and access difficult, many also hire helicopters.[2] The plaintiff helicopter operators and hunting guides hold concessions to operate aerially-assisted trophy hunting ventures on conservation land and wilderness areas. Initially the concessions were for a five year term. From 2009 they ran from year to year only.[3] In February 2012 new concession applications came to the Associate Minister of Conservation for consideration. The Associate Minister had made strong public statements previously condemning practices associated with heli-hunting. Now the decision on the applications had been delegated to him, as the result of a confidence and supply agreement entered after the 2011 general election.[4] The plaintiffs' applications sought consent to undertake aerially assistedtrophy hunting for 10 year terms. The Associate Minister granted these concessions, excluding those in wilderness areas (which he required to be publicly notified), but only for a two year period. And with conditions regulating the manner in which such hunting might be conducted. No shooting from aircraft, no chasing (or "hazing") trophies. And more controversially, placing limits on "herding" (positioning thehelicopter in the air to encourage the animal to move towards the hunter).[5] This application for judicial review concerns that limited renewal decision. The plaintiffs allege the Associate Minister was biased by reasons of his public statements, and was disqualified from making the decision he made. Further, that the decision was unreasonable, made for improper purposes and on the basis ofirrelevant considerations, and breached the Bill of Rights 1688 and operators' legitimate expectations. The essential gravamen of the plaintiffs' complaints is thegrant of only a two year term.[6] In this judgment ultimately I dismiss the application for judicial review. A detailed summary of my reasons may be found at [192] below.Facts 1: BackgroundAerially assisted trophy hunting[7] It is necessary to begin by describing exactly what aerially assisted trophy hunting (AATH) is. It involves use of a helicopter to transport guides and clients to search and locate trophy animals, such as wild deer, tahr, and chamois, in high altitude conservation areas, largely in the South Island. These areas include national parks, conservation parks and wilderness areas. No huts or tracks are permitted in wilderness areas. These areas are often extremely remote, high, rugged, glaciated and snow-covered much of the time. Some are impossible to reach on foot. They include some of the most spectacular landscapes in the world, a feature that of courseenhances hunters' experiences.[8] The pilot's job is to land the guide and client in a suitable and safe positionfor the client to attempt to shoot the animal. Having landed, the pilot then takes off and observes the client, guide, and the animal and attempts to influence its direction by positioning the helicopter. One of the operators, Mr Blair Chapman, described the practice in these terms:This process does not involve chasing the animal. An animal running off in panic is likely to go in any direction, and at high speed it is very difficult to shoot. The object is to coax the animal to continue to walk or trot in the line which the species will usually follow, towards where the client has been positioned on the ground in anticipation. Tahr will generally go downhill, Chamois uphill and across slope from the perceived danger.Once the animal is killed, the pilot then uplifts the trophy, hunter and guide and returns to base.[9] Three practices that are or might be associated with AATH are particularly controversial:(a) Hazing: this involves using the helicopter to chase a game animal. Potentially to the point of exhaustion. The animal may suffer serious injury during the chase. However, AATH operators are adamant this is not a practice they undertake. It is banned under the industry code of practice. It is prohibited under the 2012 concessions.(b) Aerial shooting: this is the shooting of game animals from helicopters while in flight. It is a practice "not condoned" by the code, at least onpublic land, except where a wounded animal needs to be dispatched humanely. More directly, it is prohibited under the 2012 concessions, save in humanitarian circumstances.(c) Herding: this is a practice undertaken by AATH operators, but one which they argue is misconceived by others. Herding is described by AATH operators as different to herding a mob of sheep. Rather the trophy is located by the helicopter, which then backs off and hovers about 30 to 50 m above, and 150 m behind, the trophy. The animal then moves away from the helicopter, and if all goes according to plan, heads towards the client who has already been dropped off by the helicopter and is positioned on the ground. The description given by Mr Chapman in [8] above relates to herding conducted in this way. The industry code for these operations provides that any herding must be done in a manner that does not place the animal under adverse duress. The 2012 concessions prohibit herding only where it would interfere with safe enjoyment of public conservation land by others or wild animal control by recreational hunting. That is not thought to be an onerous limitation.[10] The AATH season begins as early as mid-February and runs through the autumn and winter months, finishing around the end of July.[11] The majority of clients undertaking AATH are from the United States. Some also travel from Europe and Russia. Hunting expositions held in the United States each January help secure bookings. It is not the sort of activity that visitors bookspontaneously on a visit to the South Island. Bookings are secured months or years in advance. How many years in advance is contentious. Various terms were specified in evidence. The deponents refer to hunting guides booking clients up totwo or three years in advance, and sometimes up to four and five years. "Up to" isnot a terribly helpful description. There is no statistical analysis enabling either a mean or mode value to be stated.[12] The Department of Conservation (DOC)'s report on the 2011 season statesthat in 2011 there were 13 active AATH operations. During the season 212 flights took place, involving 255 guided clients. Some 376 trophies were taken: 228 tahr and 148 chamois. Crown revenue of $198,787 was generated from activity fees. Obviously, significant other economic benefits were also generated.[13] As an activity, AATH seems to have begun in New Zealand around 1968, long predating the 1987 establishment of DOC.Other aerial activities and recreational/ground hunters[14] In addition to AATH, other aerial activities are carried out against wild animals. These include:(a) Carcass recovery: helicopters are used to transport hunters to remote locations for the purpose of shooting wild animals from the air and recovering the killed animals for supply to meat processors;(b) Live capture: helicopters are used to transport staff to remote locations for the purpose of capturing live wild animals, including via nets fired from the helicopters, and the subsequent recovery of the live animal for farming purposes;(c) Culling: helicopters are used to transport hunters to remote locations for the purpose of culling numbers of certain species. Culling usually involves shooting animals from the helicopter while in flight. The carcass is not normally recovered. One of the special conditions ofthe 2011 AATH concessions was that five females of the trophy species be culled for each trophy taken in national parks or wilderness areas.[15] AATH operators compete with recreational or ground hunters.[16] In the West Coast wilderness a ballot system is conducted each year by the DOC in which recreational hunters are flown in by helicopter to camp for a week tohunt tahr. This occurs as part of DOC's programme to control tahr numbers. Three non-trophy animals are required to be culled for every two trophies taken. They are also controlled by heli-shooting, as just described. One operator, Mr Hutton (of Backcountry Helicopters, based at Makarora), deposed that he is engaged by DOC to cull 3000 tahr per year by shooting.[17] AATH operators however depose that they that see few recreational hunters in wilderness areas apart from these times. Mr Hutton states he has never seen a ground hunter or recreational user in the Olivine wilderness area in Mt Aspiring National Park. And he says that, apart from the tahr ballot, he seldom sees recreational hunters in the West Coast wilderness areas. It is simply too difficult given the distances, nature of the terrain and the loads required to sustain people over that time, to trek into many of these areas. Further, climbing activity is minimal in the AATH season as climbers usually ascend Mt Aspiring in the summer months.[18] Wild animal control is therefore achieved through a combination of all the techniques described above.Public criticism of AATH[19] By the end of 2009 AATH had gained an increasing public profile. It was receiving some negative comment. Mainly from ground and recreational hunters, conveyed to DOC and its Minister. It is plain that large numbers of terrestrial deerstalkers deplore AATH.[20] DOC's Conservator of the Canterbury Conservancy, Michael Cuddihy, hassworn an affidavit. He has had particular responsibility for AATH issues. He refersto a "flood of emails" in early 2010 about "heli-hunting". Concerns were raised over the ethics of AATH, animal welfare, a perceived lack of 'fair chase' in shooting thetrophy, reputational harm and the effects on users of public conservation land. Some also considered the intrinsic values of the land were being eroded.Statutory framework and history[21] The Wild Animal Control Act 1977 (the WAC Act) governs the hunting of wild animals and the use of an aircraft. The purpose of that Act is provided in s 4:(1) This Act shall apply to all land, having regard to the provisions of any Act applying to the land, and shall be for the purposes of controlling wild animals generally, and of eradicating wild animals locally where necessary and practicable, as dictated by proper land use;(2) This Act shall be administered, having regard to the general purposes specified in subsection (1) of this section, so as to –(a) ensure concerted action against the damaging effects of wild animals on vegetation, soils, waters, and wildlife; and(b) achieve co-ordination of hunting measures; and(c) provide for the regulation of recreational hunting, commercial hunting, wild animal recovery [operations], and the training and employment of staff.[22] Prior to DOC's establishment the Director-General of Forests had the power to issue "wild animal recovery service" permits for operators using aircraft to searchfor, shoot, or immobilise wild animals. After 1987 the Director-General of Conservation issued wild animal recovery permits.[23] In 1999 the WAC Act was amended and the Minister of Conservation took over that function. Section 5(1)(g) and (h) provide the Minister with a general power to:(g) make provision for the licensing of persons commercially hunting, capturing, transporting, holding, selling, or exporting wild animals, and persons who aid, assist, or guide other hunters in the hunting,capturing, transporting, holding, selling, or exporting of wild animals.(h) specify conditions under which wild animals may be hunted, and periods and times at which they may be hunted, including making such charges and setting such fees as he considers necessary for any permit, service, and other matter consistent with this Act.The Minister's powers can be delegated under s 6.[24] AATH requires a wild animal recovery operation (WARO) concession. WARO is defined in s 2 as:Wild animal recovery operation means the use of an aircraft (whether or not for hire or reward) to carry out 1 or more of the following activities:(a) the searching for, shooting, or immobilising of wild animals:(b) the recovering of wild animals (whether dead or alive) or of any part of those wild animals:(c) the carriage of persons, supplies, equipment, firearms, ammunition, poisons, or other things that may be used for the purpose of paragraph (a) or paragraph (b).[25] Section 21 applies Part 3B of the Conservation Act 1987 (Conservation Act) to the WARO concession process. Section 22 provides the Minister with the power to grant concessions to undertake WARO on certain land, including conservation areas and national parks. It provides:Power to grant concessions for wild animal recovery operations on certain Crown-owned and other land(1) Despite any other Act, the Minister has exclusive authority to grant, in accordance with Part 3B of the Conservation Act 1987, concessions authorising the holder of the concession to enter any land described in subsection (2) and engage in wild animal recovery operations.(2) The land is—(a) Crown-owned land that is—(i) a "conservation area", or deemed to be aconservation area, under the Conservation Act 1987:(ii) a "national park" under the National Parks Act 1980:(iii) a "reserve" under the Reserves Act 1977,—(A) including a reserve that is controlled or managed by an administering body under any of sections 28, 29, 30, 35, and 36 of that Act; but(B) excluding a reserve vested in an administering body under that Act or another Act:(iv) a "wildlife sanctuary" or "wildlife refuge" or "wildlife management reserve" under the WildlifeAct 1953:(b) other land to which the National Parks Act 1980(3) For the purposes of subsection (1), Part 3B of the Conservation Act 1987 (except for sections 17O(4) and 17U(3)) applies as if references in that Part to a conservation area were references to—(a) a national park in the case of land described in subsection (2)(a)(ii):(b) a reserve in the case of land described in subsection (2)(a)(iii):(c) a wildlife sanctuary or wildlife refuge or wildlife management reserve, as appropriate, in the case of land described in subsection (2)(a)(iv):(d) land administered as if it were a national park in the case of land described in subsection (2)(b),—and in each case with any other necessary modifications.(4) Nothing in this section limits or affects the powers of the Director- General under section 27.[26] The matters to which the Minister must have regard to in considering an application are specified in section 23:Matters to which Minister to have regard in considering application for concessionIn considering an application for a concession under section 22, the Minister must have regard not only to the matters specified in section 17U (other than subsection (3)) of the Conservation Act 1987 (as applied by section 22), but also to –(a) the provisions of the Act under which the land concerned is held and the purposes for which that land is held; and(b) the purposes of this Act; and(c) the role of persons engaged in hunting for recreation in achieving the purposes of this Act.[27] Section 17U of the Conservation Act, referred to in s 23 of the WAC Act, provides (so far as relevant):Matters to be considered by Minister(1) In considering any application for a concession, the Minister shall have regard to the following matters:(a) the nature of the activity and the type of structure or facility (if any) proposed to be constructed:(b) the effects of the activity, structure, or facility:(c) any measures that can reasonably and practicably be undertaken to avoid, remedy, or mitigate any adverse effects of the activity:(d) any information received by the Minister under section 17S or section 17T of this Act:(e) any relevant environmental impact assessment, including any audit or review:(f) any relevant oral or written submissions received as a result of any relevant public notice issued under section 49 of this Act:(g) any relevant information which may be withheld from any person in accordance with the Official Information Act 1982 or the Privacy Act 1993.(2) The Minister may decline any application if the Minister considers that—(a) the information available is insufficient or inadequate to enable him or her to assess the effects (including the effects of any proposed methods to avoid, remedy, or mitigate the adverse effects) of any activity, structure, or facility; or(b) there are no adequate methods or no reasonable methods for remedying, avoiding, or mitigating the adverse effects of the activity, structure, or facility.[...][28] As will be apparent, the effects of the activity are at the heart of the required Ministerial analysis in granting or withholding a concession. Unstated in s 17U, but obviously relevant, is the extent to which effects may be avoided, remedied or mitigated by conditions. Section 17X allows the Minster to impose conditions on concessions. Foremost is the power to impose "such conditions as [the Minister]considers appropriate" for "the activity itself, the carrying out of the activity, and the places where it may be carried out."1[29] Sections 17Z(2) was amended in April 2010, increasing the possible maximum period of a concession from five to 10 years.[30] Finally, section 17ZC(2) allows for applications to vary or extend existing concessions. Section 17ZC(3) provides the Minister may vary the conditions of a concession where:(a) the variation is the result of a review provided for in the concession document; or(b) the variation is necessary to deal with significant adverse effects of the activity that were not reasonably foreseeable at the time the concession was granted; or(c) the variation is necessary because the information made available to the Minister by the concessionaire for the purposes of the concessionaire's application contained inaccuracies that materially influenced the decision to grant a concession and the effects of the activity permitted by the concession require more appropriate conditions.Facts 2: The plaintiffs[31] There are six plaintiffs. Four are helicopter and guiding operators; two are guiding and lodge operators who use helicopter operators for AATH purposes.[32] Back Country Helicopters Limited provides helicopter and guided hunting services across the South Island high country. Its main heli-base and office is in Makarora, between Wanaka and the Haast. It has operated there since 2003, although it was in business before then. Hunting activity provides 90 per cent of its business income through the winter.[33] Alpine Deer Group Limited has been operating as a commercial helicopter operation, under a number of guises, since 1965. Alpine Deer was one of the first companies to use helicopters to transport recreational hunters into the wilderness. It1 Conservation Act 1987, s 17X(a).provides transport for a number of professional hunting guides. It is active in Aoraki Mt Cook National Park, Westland National Park, Mount Aspiring National Park, and the Olivine, Hooker-Landsborough and Adams Wilderness areas, amongst others. WARO operations and associated activities represent up to 40 per cent of its gross income.[34] Mount Hutt Helicopters Limited provides AATH, along with tahr culling services. It also offers agricultural spraying operations over the September to April months and heli-skiing from July to September. AATH however sustains the business for the balance of the year.[35] Alpine Hunting Adventures Limited provides services over the Taihape and Napier regions of the North Island, as well as the West Coast of the South Island. A helicopter was first bought for AATH in 2000. It is based at Franz Josef for theAATH season. Thirty per cent of Alpine Hunting's business derives from AATH.[36] New Zealand Mountain Hunting Limited is based in Waimate. It operates a hunting lodge in the Ahuriri Valley. Chamois and tahr hunts form approximately 40 per cent of its hunting business. It does not appear to be a helicopter operator itself, but its guides and clients use helicopters for AATH.[37] Finally, South Pacific Safaris (NZ) Ltd is based in Kaikoura. It also operates a hunting lodge. Ninety per cent of its clients use AATH. That operation is based at Mt Hutt. Again, although not a helicopter operator, its guides and clients use helicopters for AATH[38] The plaintiffs have all made substantial investments to operate in this industry. The nature of the AATH operation means that smaller, lighter helicopters are required, each costing up to $2 million. And a number of the plaintiffs have established and invested in hunting lodges to cater for clients staying in New Zealand, and engaging in AATH.Facts 3: The concession application process prior to the 2011 general election2004-2009 concessions[39] Concessions were issued to each of the plaintiffs in 2004 and were due to expire on 30 September 2009. Those concessions did not differentiate between different WARO activities. One document covered all facets of WARO. They made no reference to AATH. But the concessions specifically excluded the carriage of recreational hunters or fare-paying passengers. Mr Mike Cuddihy, DOC'sCanterbury Conservator, deposes that the intent behind this exclusion was to target the practice of heli-hunting, limiting the scope of the concession to carcass recovery, live capture and culling.[40] That is not how the plaintiffs saw it however. Despite that express exclusionAATH operations continued under WARO concessions. In contrast to DOC'sinterpretation, the industry did not perceive the exclusion to prohibit AATH operations. It was argued its operators were being paid for the animal recovered and not for the carriage of recreational hunters or fare-paying passengers. If no animal was recovered, no fee was paid.Wild Animal Recovery Operations Framework – March 2009[41] On 16 February 2009 the then-Minister of Conservation, the Hon T J Groser, wrote advising that WARO concessions had been used for a wide range of activities,some of which exceeded DOC's intent as to scope at the time of issue. Greaterclarity was needed, and that could only be achieved by separating out the different types of WARO activity.[42] In March 2009 DOC issued a "Wild Animal Recovery Operations (WARO) Framework" (the Framework). The Canterbury Conservator, Mr Cuddihy, took theleading role for DOC. The Framework was intended to give more clarity and certainty to the scope of activities undertaken under WARO concessions. WAROconcessions "will be specific for the activity undertaken". The new Framework separated out "commercial heli-hunting" from other WARO activities (such ascarcass recovery and live capture). This activity was described as involving helicopter conveyance of hunter and guide for trophy animals, and either ground- based or aerial shooting of the animal.[43] Mr Cuddihy deposes that heli-hunting was separated from other WARO activities because its environmental and social impacts were different:Heli-hunting had the characteristics of a recreational activity, a significant aircraft noise footprint, low kill productivity and generally only trophy males were taken. This did little to reduce the effective breeding potential of wild animal populations. To be effective large numbers of breeding age females must be killed or removed.[44] Concessions for commercial heli-hunting would relate to defined areas,would be for periods of "up to five years" (to enable the effects of the activity to be reviewed more frequently) and were "likely to be notified publicly". Concessionfees would be paid for each trophy taken.2009 season[45] Despite the issue over the scope of activity permitted under the 2004 concessions (which were due to expire in September 2009, after the end of the 2009season), a "pragmatic" decision was made by Mr Cuddihy. On 30 March 2009 operators were advised that they "would be able to continue to operate and carry out heli-hunting for the 2009 season over the areas identified in their applications". Theimportance of this was not as to term (they already had tenure for the current season), but as to permitted activity. There was now no argument that AATH could lawfully be conducted.2[46] Discussions and meetings continued between members of the industry and DOC about separating out activities qualifying as WARO. On 13 October 2009 representatives of the AATH industry (and their senior counsel) met the Minister, Mr Groser, and the Associate Minister of Tourism, the Hon J D Coleman. Meetings took place between Mr Cuddihy and his staff and helicopter operators and guides in Wanaka and Luggate between September and December 2009. Operators argued for2 See [39] and [40] above as to the controversy over what activity was permitted.a five year term for applications for heli-hunting concessions. They sought such terms in their application, that being the maximum term for permits then prescribed by the legislation. Mr Cuddihy deposes:I would have been surprised had they not applied for the maximum term allowable. It would give them the greater certainty for planning their businesses and securing their client. It was my view there was long term future for heli-hunting and that now was the time as part of the renewal process for the 2004-2009 WARO permit to sort it out. Nevertheless, while the Department was processing applications for five year permits and was also thinking the term would again be five years, it did not necessarily follow the Minister or his/her delegate would grant the application, or grant it for the terms sought.[47] Discussions about the WARO Framework raised the profile of heli-hunting.At about the same time, in January 2010, DOC also received "a flood of emails"from people complaining about heli-hunting activities. The complaints related to hunting ethics, animal welfare, reputational harm and interference with recreational hunting activities.[48] Mr Cuddihy attended the Safari Club International convention in Reno, in late January 2010. It is an American-based hunting advocacy organisation. The majority of hunters coming to New Zealand for AATH are Safari Club members. The plaintiffs and other AATH service providers in New Zealand also attend the convention, to promote New Zealand and their services in particular. At the 2010 convention Mr Cuddihy met some of the New Zealand exhibitors. They made clear to him that their prime selling objective then was the 2011 season (March-July2011), "and if possible the years beyond that, i.e. 2012 and even 2013". By thatstage the 2010 season was already 80% pre-sold. He was also shown the Safari Club code of hunter ethics, and its new use of aircraft policy.2010 season rollover[49] On returning from Reno, and despite progress made between the two groups, Mr Cuddihy realised applications were again unlikely to be processed in time for the 2010 season.[50] As a result he proposed that a one year non-notified permit be issued. The proposed permit however restricted AATH from being undertaken in wilderness areas and national parks. It also prohibited the shooting of wild animals from helicopters, hazing and herding – any mechanism using the helicopter "to control the movement of the trophy animal". The "only mode of heli-hunting that is permitted for this interim period is that of spot and drop". The rationale for that restriction was a mixture of animal welfare concerns and DOC's objective to support "sustainable and reputable" hunting activities. Reference was made to support said to be found inthe Safari Club code of ethics. A public meeting with interested persons took place in Richmond on 12 February 2010.[51] The proposed concessions were met with considerable opposition fromoperators. Herding in some form (such as beating, for instance) was said to be "asold as hunting itself". It was done by deerstalkers on the ground. The industrybelieved the Department was going outside its statutory role and authority inproposing such conditions relating to "ethical" rules.[52] However, the proposed concessions (with conditions) were accepted by those wishing to undertake AATH in early March 2010. Some operators recorded they hadsigned "under protest and economic duress".[53] Each concession expressly permitted the use of a specific helicopter, to carry guides and hunters, to search for trophy animals, and to kill and/or recover a specificnumber of animals. Prohibited was "the use of the helicopter to herd, haze or drive animals". Aerial shooting was also prohibited, save by the guide to humanely kill analready wounded animal.[54] As mentioned already, there was already a degree of public controversy about AATH or heli-hunting. It is not clear if the public distinguished the two clearly. There has been in this debate a lamentable want of terminological precision.[55] The leader of the United Future Party in Parliament, the Hon P F Dunne, was a critic. On 1 March 2010 he issued a press release praising the Canterbury-AorakiConservation Board for its decision to oppose heli-hunting on public land. MrDunne's press statement said in part:Heli-hunting of the type consistently employed by a few "cowboy" operators should never have been considered under WARO permits", said Mr Dunne.Heli-hunting entails either shooting a tahr or chamois directly from a helicopter or placing a helicopter on the ground and herding the animal or animals towards him with the helicopter. It is not hunting, it is killing. Foryears "rat bag" operators got away with this inhumane, barbaric practice,illegally using wild animal recovery permits to do so; well it's time to put astop to it.At that time, of course, Mr Dunne had no ministerial responsibility in relation to conservation.[56] The Hon C J Wilkinson took over as Minister of Conservation on 27 January 2010. On 18 March 2010 she attended a meeting with representatives of the AATH industry to better inform her of the industry, surrounding issues and to discuss the concession applications. Threats of judicial review had been made in priorcorrespondence from the plaintiffs' counsel. The meeting seems to have been more exploratory than determinative of any issue.[57] On 4 June 2010 Mr Cuddihy wrote to the President of the Safari Club, a MrLarry Rudolph. I have already described Mr Cuddihy's visit to the club's conventionin Reno in January 2010. As noted already, many (and probably a majority) of thehunters using the plaintiffs' services belonged to that club. The letter reassured theclub that DOC supported guided hunting and that, to provide for the future, the next 5 to 10 years, new concession applications were being considered. The letter waswritten at the urging of the plaintiffs' counsel.[58] On 21 June 2010 Mr Dunne repeated his earlier views in a further pressrelease. It is headed "Heli-hunting's Days are Numbered". It states:United Future Leader Peter Dunne is adamant that the days of heli-hunting on public conservation land are almost numbered.Heli-hunting should never have been considered under wild animal recovery operation (WARO) permits, said Mr Dunne.However due to the archaic nature of the law regarding large game animals a small number of operators continue to get away with this inhumane and unethical practice.However it is my belief that the days of heli-hunting taking place on public conservation land are numbered.Heli-hunting entails either shooting a tahr or a chamois directly from a helicopter or placing a hunter on the ground and herding the animal or animals towards the hunter with the helicopter.It is not sport, and it is definitely not hunting. What makes it worse is that this is taking place on a public conservation land.For recreational hunters, trampers and climbers, heli-hunting on conservation land is not only abhorrent and potentially dangerous, but it does not fit the intention by which our National Parks and public lands were created.The soon to be announced recommendations for the Game Animal Council will, I hope, give the Minister of Conservation the ability to prohibit heli- hunting on public conservation land for good.[59] It is, I think, important to note that in both releases Mr Dunne's definition ofheli-hunting is the use of the helicopter for aerial shooting (which is not part of AATH) or herding (which, on the other hand, may be).3 So, as between operators and politician, the real area of disagreement was herding.[60] During the remainder of 2010 meetings between AATH representatives and the Conservancy were held to resolve issues such as the relevant statutory powers to impose conditions, access to wilderness areas and national parks, access to other public conservation land, the mechanism by which any trophy fee would be applied,and "flight-following" technology. In Mr Cuddihy's view, these issues were largelyresolved by the end of 2010.2011 season rollover[61] It again became obvious to DOC that concession applications for the 2011 season would not be processed in time. DOC, again acting through Mr Cuddihy, proposed that the 2010 concessions would be reissued. This time, however, the prohibitions on operating in wilderness areas and national parks, and herding, hazing3 See [9] above.and aerial shooting would be deleted. Instead compliance with a draft code of practice developed by the South Island Wild Animal Recovery Operators Association would be a condition of the concession. Most if not all of the plaintiffs were members of that body.[62] The proposed 2011 season concession did not therefore contain the express prohibitions on hazing, aerial shooting and herding found in its 2010 counterpart.Conditions included compliance with the Association's draft code and draft standard operating procedure. The former permitted herding, but not in a way that causedanimals "adverse duress". By implication it prohibited hazing. The latter prohibitedaerial shooting, except for humane reasons in the case of a wounded animal (and where a second shot from the ground was impossible).[63] Other conditions provided for a fee payable for each trophy shot in the wilderness, an environmental contribution, and a requirement that five females of each trophy taken in national parks and wilderness areas be culled. In addition, exclusive access to wilderness areas for recreational hunters for a four week period coinciding with the red deer roar.4[64] On 4 April 2011 concessions for the 2011 season (but commencing 7 February 2011) were granted (by a Deputy Director-General of DOC, under delegation from the Minister).[65] It follows that in the 2009, 2010 and now 2011 seasons, AATH operators had enjoyed no more tenure than for the immediate season ahead.Events leading up to the 2011 general election[66] After AATH concessions were granted for the 2011 season, on 19 April 2011 Mr Dunne issued another written statement. It included the following:Once again DOC has ripped off those New Zealanders that enjoy spending time in our mountains.4 The rutting season, when stags call to attract mates and to protect their territory; the mostpopular time to hunt.Heli-hunting on public conservation land is not only abhorrent and potentially dangerous, but also does not fit the intention by which our national parks and wilderness areas were created.Heli-hunting entails either shooting a tahr or a chamois directly from a helicopter or placing a hunter on the ground and herding the animal or animals towards them with the helicopter.It is not a sport, it is certainly not hunting, it's just killing.For years helicopter operators have got away with this inhumane, barbaric practice and now DOC have not only legitimised it, but they have given it priority over other forms of recreation.The real hypocrisy is that for wilderness areas such as the Adams, Hooker Landsborough and Olivines where other people are not even allowed fly-in access DOC has allowed heli-hunters an unprecedented right to use helicopters....Those that got into the Southern Alps to hunt, tramp or climb deserve better. DoC is a department that has totally lost its way. It is meant to look after the interests of New Zealanders first and foremost, not rich tourists who now have more rights in our mountains than we do.This decision is further proof that DOC can no longer be trusted to look after the interests of recreation in this country[67] It will be seen that this statement substantially repeats in part things said in the March and June 2010 releases.5 Mr Dunne now accepts that his statement regarding the hypocrisy of allowing AATH hunters into wilderness areas and not other hunters was incorrect. He accepts other hunters are allowed to be dropped off by helicopters in wilderness areas so long as the Department can see a benefit in terms of management of the area. It is clear that tahr ballot hunters have been flown into wilderness areas in the past.6[68] On the same day a clip showing Mr Dunne addressing a camera was posted7on YouTube. In it he says:I'm a pretty relaxed sort of guy. It takes a lot to get me riled and angry. But one thing that's really got me upset in the last few days has been DOC'sdecision to extend into wilderness areas the permits for people to go heli-hunting. And if you don't know what heli-hunting is, it's essentially hunting5 See [55] and [58] above.6 See [16] above.7 Evidently by the United Future Party organisation.big animals like deer and chamois indiscriminately from the air by helicopter. And in wilderness areas, these are parts of the country where the real devotees take days to trek into, and they enjoy the trek in there, and then when they get there they enjoy the hunt and the opportunity to be with theircomrades, and here they are, they've done all of this and they have theircamp set up and they've fired up their billies, and suddenly like ApocalypseNow over the horizon come in these armed desperadoes just shooting atrandom at the wildlife stock that's around there. This is not hunting, this isjust naked slaughter and killing and for people who really value newZealand's outdoor lifestyle and really value the fact that we contribute to ourheritage that way and that the hunters have a real preservation ethic, this sort of mindless boom boom boom here we come, in we go bang bang bang approach is just simply the most revolting and insulting type of activity they can think of. And I find it really offensive that the Department ofConservation that's there to help preserve our natural environment in all ofits glory is such a willing party to this vague sort of wanton just vandalism and slaughter. It is simply unacceptable and if ever there was an argument for better control through the UnitedFuture Game Animal Council then thank you DOC, your irresponsibility has just provided it and for thousands ofNew Zealanders they will be repelled by your decision so don't talk again about your care and concern for the environment, what you've shown is that you're out there ready to be taken by the highest bidder.[69] It might be noted that this condemnation of "heli-hunting" is somewhat lessdiscriminating in identifying the four corners of that activity than the written statements made in March and June 2010 and in April 2011.[70] In August 2011 operators provided their hunting activity returns for the 2011 season. DOC staff analysed those returns and prepared a provisional report for public consultation. A public meeting to discuss it was held on 13 September.[71] On 22 September 2011 a DOC staff member tasked with day to day responsibility for concessions emailed industry representatives. It advised that she was working on a report on the 2011 season, which would be available for comment shortly. It also raised a few issues about the pending applications for long term concessions. One was term:Most of you have applied for a term of 5 years with a qualifier that you would like the longest term possible for a permit. When you applied, 5 yearswas the maximum allowable for a permit and for the level that didn'tautomatically trigger public notification. This term has now been extended to 10 years as the maximum allowable for a permit and also the maximum allowable without triggering automatic notification. I will take it that you would all like to apply for a permit for 10 years unless I hear differently from you by the 30th September. (Please don't read into this that a 10 yearterm will automatically be granted or that the permits will not be notified –neither of these things have been determined yet). There are two operators who have applied for longer than 10 years and I'll phone you individuallyregarding this.One of the plaintiffs' witnesses refers to that email as providing for the "ability to apply for 10 year terms". It is of course explicit that no decision to grantconcessions of that duration had yet been made.[72] In October 2011 the report on 2011 heli-hunting operations was issued. It concluded:The environmental effects of heli-hunting concessionaires and clients are less than those of other recreationists who spend more time on public conservation land. However, the social effects of the activity, whether real or perceived, are very apparent. Ground hunters have been vocal in 2011 in their opposition to heli-hunting, including those who attended a public meeting in September to discuss 2011 operations. Tahr ballot hunters in particular believe their hunting opportunities and levels of satisfaction have been compromised through the approval of heli-hunting in ballot block areas during ballot periods. Other environmentalists are opposed to the activity in Wilderness Areas, arguing intrinsic values of these areas are being eroded. The recent upsurge in opposition to heli-hunting as an activity in 2011, despite reports of it occurring for the past 20 years, is likely to be a result of bringing the activity into the public arena through the new WARO concession requirements.Heli-hunting has shown from 2011 operations it can be useful tool in animal management, enhancing the Department's own control programmes, makinga substantial contribution to Crown revenue for conservation work, andattracting additional tourism dollars to the country's economy from aparticularly affluent tourist sector.The key when determining future permits will be whether the perceived and real effects of the activity can be adequately addressed.[73] At that stage there were 16 long term concession applications for AATH under consideration. They sought (or were treated as seeking) a term of 10 years.[74] A draft concession officer's report on the applications was prepared by DOC in November 2011. The addressee of the report was the DOC Deputy Director- General then holding delegation of the Minister's statutory powers under ss 5(1) and 6 of the WAC Act.[75] The report noted that "as the legislation currently stands, issues of animal welfare and ethics such as herding, hazing, shooting from aircraft and fair chase arenot able to be considered in the processing of these applications". It then proposeddividing the land under application into two separate permits. First, all public conservation land excluding the Hooker-Landsborough, Adams, Olivine or Glaisnock wilderness areas. Secondly, land within those areas. The reporter considered that in the first case the effects of aerial assisted trophy hunting were known and adequately addressed by operating restrictions and conditions. The reporter recommended the grant of AATH permits to cover activity in those areas without public notification. In relation to the second, the named wilderness areas, the report considered the efficacy of restrictions and conditions proposed to manage user conflict was not sufficiently tested. More information was needed to gauge the effects of AATH on intrinsic values of wilderness areas and to determine whether the activity affected the ability of tahr ballot holders to conduct their culls. Any such permits should be the subject of public notification. Finally, the reporter recommended that concessions be granted for a term of 10 years (excluding activity occurring in gazetted wilderness areas).[76] The report was given to operators on 15 November 2011 for comment. The operators provided comment on 22 November 2011.Facts 4: The concession application process after the 2011 general election[77] On 26 November 2011 the general election was held. The incumbent administration was re-elected, but was two seats short of a majority in House of Representatives.A confidence and supply agreement[78] A confidence and supply agreement was signed by the National Party and the United Future Party on 5 December 2011. Inter alia, this agreement provided for (1) the appointment of Mr Dunne to three portfolio responsibilities, one of which was Associate Minister of Conservation; (2) passage of the Game Animal Council Bill then before Parliament; and (3) implementation of the following policy:[to] put in place the necessary legislative provisions to cease guided helicopter hunting on the conservation estate involving the shooting of game animals from helicopters and the herding and hazing of game animals as part of the hunt, and the inequitable access provisions for guided helicopter hunting in wilderness areas.A press release summarising the agreement was issued under the title, "Outdoor Recreation wins under UF agreement". From this point in the judgment I will referto Mr Dunne as "the Associate Minister".[79] The terms of the agreement would by no means end heli-hunting or AATH operations on the conservation estate. But they were intended to restrict the three most controversial aspects of heli-hunting noted at [9] above.[80] On 13 December 2011 the plaintiffs' counsel wrote to the Minister. That was still the Hon C J Wilkinson. The letter sought clarification on government policyregarding AATH in light of the new agreement and the Associate Minister's earliercomments. The letter went on to say that AATH did not involve "herding". It did soby reference to a dictionary definition. That is at odds with the evidence given bythe plaintiffs. That evidence is quite clear: "herding", in the sense of positioning ahelicopter so as to encourage a trophy to move in a particular direction, is a feature of AATH.[81] The Minister forwarded the letter to the Associate Minister to reply. That reply issued on 21 December 2011. In it the Associate Minister noted that he would now have delegated responsibility for AATH or heli-hunting matters. He went on to say:I believe there is a lot of misinformation regarding UnitedFuture'sConfidence and Supply Agreement with the National Government. There is no intention from the Government to ban heli-hunting outright. The Confidence and Supply Agreement specifically states that we will:Put in place the necessary legislative provisions to cease guided helicopter hunting on the conservation estate involving the shooting of game animals from helicopters and herding and hazing of game animals as part of the hunt, and the inequitable access provisions for guided helicopter hunting in wilderness areasI am aware that there are issues to be worked through regarding current concession applications, planning issues for operators, and the agreement reached in the Confidence and Supply Agreement regarding aerially-assistedtrophy hunting. As a new Minister in this area, I would like to meet with you as a representative of the majority of the concession applicants so that I have a better understanding of the issues facing your clients.The Associate Minister sought a meeting as soon as possible, after 24 January 2012.Opening shots are fired[82] This brought an immediate response from the plaintiffs' counsel that hisclients "will be very relieved". But the relief proved short-lived. A further emailfrom the Associate Minister's staff on 21 December 2011 said:We apologise if we did not make matters clear but Minister Dunne has pulled the delegation back from the department and will be making the decision on the applications himself. We will not, however, be making the decision before Christmas; nor do we anticipate making the decision before meeting with you.The letter noted the need to absorb information, and the assistance the proposed meeting would provide in doing so.[83] Within three hours, counsel for the plaintiffs responded. The email isremarkable in many respects. It raised the issue of "predetermination or bias" in theAssociate Minister "who has publicly voiced opposition to the industry" making the decision. It denied that aerial shooting occurred, and "herding and hazing" raised a "problem of definition". But operators did not run animals to the point ofexhaustion, as opponents alleged. More importantly, it would be unlawful to imposeconditions based on animal welfare considerations. That was "legally irrelevant"and to take it into account would be a ground for judicial review.[84] Delay was a special concern. The 2012 season would begin in February. The Associate Minister had:... interfered in a long running and lawful process in which the applicants are not only entitled to have their applications considered under the law as it stands, but have a legitimate expectation of a decision being in time for the next season which commences on 10 February for some operators.Interestingly, apart from a reference to bookings being made up to three years in advance, there is here no suggestion of a legitimate expectation to a concession of any particular duration. Rather, the concern focussed upon commencement. The email went on to suggest that delay on the basis of intended legislative change would be unlawful by virtue of the Bill or Rights of 1688. The famous constitutional caseFitzgerald v Muldoon8 was expressly referred to. The prospect of judicial review was clearly signalled. As was a claim for misfeasance in a public office, and"substantial damages".The Associate Minister meets with the AATH industry[85] The Associate Minister met industry representatives in two meetings on 25 January 2012. The Associate Minister deposes that these meetings were veryhelpful to get a description of AATH from the operators' perspective.[86] The first meeting involved AATH operators and counsel for the plaintiffs. Mr Chapman (of Mount Hutt Helicopters Ltd, one of the plaintiffs) attended. In his affidavit he says that the meeting gave the AATH representatives the opportunity to explain that the contentious practices either did not occur (aerial shooting – "an agreed condition of the concession not to allow it") or did not occur in the manner alleged ("herding and hazing" – "we do not make them run – that defeats the purposeof the exercise"). The Associate Minister particularly wanted to know if the shootingstill required skill on the hunter's part, and he was assured that it did.[87] The Associate Minister gives a consistent, but more detailed account in hisaffidavit. In particular he notes that he was told that "herding" was "a critical aspectof their business" because it helped ensure a successful hunt. The technique – thehelicopter hovering "about 150 metres behind the animal while it goes in the direction of the hunter and guide" is consistent with the industry's own evidence inthis case. The Associate Minister says, "I was told this was not like herding a mob of sheep".8 Fitzgerald v Muldoon [1976] 2 NZLR 615 (HC).[88] The Associate Minister also noted that a number of the concession applicants needed finalisation before Saturday 11 February 2012, when they were due to begin operations. He says he was also told that clients were typically booked "up to two years in advance". Mr Cuddihy also attended the meeting. His affidavit is consistent with the Associate Minister's on the extent of pre-booking. Of course, Mr Cuddihy already knew pre-bookings could exceed that range. He had been told that in Reno.9But there is no evidence the Associate Minister was told of that fact. Theconcessions officer's report does not mention it. Mr Chapman does not comment onthat point in either his original affidavit or his reply affidavit.[89] The second meeting was with representatives of the New Zealand Professional Hunting Guides Association. The Associate Minister says its content was consistent with the first meeting.Delegation to the Associate Minister[90] Formal delegation of the Minister's powers to the Associate Minister occurred on 7 February 2012. It is clear that the Associate Minister had met with industry representatives and undertaken analysis well before that date, in anticipation of it occurring.[91] There is no direct challenge in these proceedings to the revocation of the original delegation to the Deputy Director-General or the new Ministerial delegation to the Associate Minister.Concession officer's report[92] The concession officer's report had been forwarded to the Associate Minister on 8 December 2011. The report is detailed and thoughtful. It includes"consultations comments" or "concessions comments" from the plaintiffs and otherindustry members. The copy in evidence before me also bears handwritten remarks by the Associate Minister.9 See [48] above.[93] The report continued10 to recommend that the decision maker grant the applications to cover AATH in areas applied for, excluding wilderness areas, without public notification. Here the effects of AATH were known, and were adequately addressed through operating conditions.[94] The report again continued to recommend that wilderness areas should be subject to separate permit, and public notification. In these areas, however, the efficacy of operating conditions to manage user conflict was insufficiently tested. More information was needed to gauge the effects of AATH on intrinsic values of wilderness areas and to determine whether the activity affected the ability of tahr ballot holders to conduct their culls. Any such permits should be the subject of public notification.[95] The Associate Minister has noted "Agree" beside all these remarks. It isnoteworthy that the same advice had been given in the earlier draft report when the decision maker was to have been the Deputy Director-General of DOC.[96] The report recommended concessions be granted for a term of 10 years. AATH was not a new activity; the effects of the activity in all areas other than wilderness areas were known; and those had been adequately avoided, remedied, or mitigated (and tested in 2011) though concession conditions. It continued:The 2010 change to the terms of permits indicates that 10 years is the default position. After considering further advice received regarding an appropriate term, the current levels of aerially-assisted trophy hunting operations and the relevant legislation, management strategies and planning documents, the Department recommends there is no reason to depart from the default position and that it is therefore appropriate that the concession applications considered in this report, (but excluding any activity occurring in gazetted wilderness areas) be granted for a term of 10 years. [original emphasis][97] With that passage the Associate Minister disagreed. Specifically, with the"default position" analysis (rather it was "the maximum term that can be applied for"). And with the 10 year recommendation.10 See [75] above.The Associate Minister decides[98] On 8 February 2012 the Associate Minister decided to grant the AATH concessions. Specifically, he:(a) accepted DOC's recommendations as to what land should or shouldnot be available for AATH;(b) accepted the recommendation that applications not be publicly notified, except in relation to wilderness areas;(c) disagreed with the recommendation of 10 years and granted the concessions for a term of two years;(d) imposed as a condition that the concessionaire must not shoot or authorise shooting from helicopters except where a wounded animal needs to be despatched for humane reasons (as described in the Code of Practice on Aerially Assisted Guided Hunting attached to the concession document);(e) imposed as a condition that the concessionaire must not carry out any form of hazing wild animals (being the persecution, harassment, or maltreatment of wild animals using a helicopter) (as described in the Code of Practice on Aerially Assisted Guided Hunting attached to the concession document); and(f) imposed as a condition that the concessionaire must not use a helicopter to herd (as described in the Code of Practice on Aerially Assisted Guided Hunting attached to the concession document) wild animals in any situation where that activity would interfere with: (1) the safe enjoyment of public conservation land by other users; and (2) the control of wild animals by recreational hunting.[99] It is (c) that has caused most controversy with the industry. Less so (f),because it is far from being a substantial limit on the operators' cherished practice ofherding (in the sense of positioning and directing, rather than chasing). Indeed it can be seen as a significant compromise, which largely permits such herding to continue.[100] The Associate Minister issued a reasons letter at the same time.[101] As to (c) – the term of the concessions – the Associate Minister said that, while satisfied AATH constituted a legitimate management tool with beneficialeffects on the public conservation estate, he was "troubled by actual and potentialadverse effects on other users of public conservation land, including recreationalhunters". He noted that the final report on the 2011 season identified a conflict with tahr ballot hunters in wilderness areas which was a matter of significant potential effect. He raised concerns over significant effects the activity would have on ballot block holders, including noise, perceived and real loss of potential trophy animals, and an interference with capability to undertake culling. That was in spite of conditions imposed on concessions to manage those effects. He also noted concerns regarding the effects of heli-hunting on users of public conservation land generally. But in particular on the intrinsic values of wilderness areas being comprised. On this, there was a dearth of information. The Associate Minister considered it would be desirable to ascertain the effects AATH has on these intrinsic values.[102] Despite measures proposed to reduce the level of noise and interruption of the natural quiet, the Associate Minister remained concerned at the risk of actual and potential adverse effects on other recreationists. Although the applicants asserted that helicopter transport fosters recreation in less accessible areas and a low number of landings over a large area of land would result in minor potential for direct conflict, the Associate Minister preferred to characterise it as a "case of mechanised accesspotentially detracting from the experience that other users of public conservationland seek". Despite mitigation measures proposed to reduce actual and potential effects the Associate Minister stated "I am still left concerned about impacts on otherusers of public conservation land, including recreational hunters".[103] The Associate Minister decided not to decline the applications in reliance on s 17U(2)(a), or require public notification under s 17T(5). Instead he said he wastaking an "incremental approach" by adopting a two year term to "enable [DOC] to gather further information over that period". The letter continued:If at the expiry of the 2 years applications are made for further permits, I will be in a better position to determine whether to grant for a longer period of time, seek public input of the effects that are identified, or to decline.[104] As to additional conditions (d) and (e) above, the Associate Minister noted that prohibitions of shooting and hazing were already part of the industry code. Sothat "should not occasion any objections".[105] With respect to condition (f), concerning herding, the Associate Minister said:I have chosen to give greater weighting to actual and potential effects on recreationalists and recreational hunters. I am therefore requiring a condition on herding because I consider it is another way in which I can deal with the concerns I have noted above.[106] In his affidavit to the Court the Associate Minister deposed he considered a 10 year period was not the default position (in contrast to DOC's report) but ratherthe maximum period that could be applied for. The contemporaneous note made onthe concession officer's report makes the same point. The Associate Ministerdeposes that as AATH was controversial, he considered it appropriate that public input about its effects in wilderness areas be received before making a decision on concessions for any longer term. Further insight is found in a speech given in July 2012 to the New Zealand Deerstalkers Association.11 In it the Associate Minister said:I met with some of the applicants on the basis the information provided to me at that meeting drew the conclusion that the ten year permits were clearly unsustainable but that the extension of the permit for a further two years was reasonable in terms of various natural justice provisions which included the following, when I asked the applicant how far in advance the overseas visitors book their experiences I was told about two years....11 See [113] below.So I thought on the basis of their evidence it was not unreasonable to award them permits for a further two years because after all that was the period in which the bookings according to them came through. ...That the Associate Minister was given that information at the meeting on 25 January 2012 was uncontroverted by the plaintiffs.12[107] The Associate Minister also deposes:I was acutely aware that I was bound to make the decision based upon the legislation as it currently stands. Therefore, I consciously did not consider the intention to amend legislation as set out in the Confidence and Supply Agreement...He states no legislation was even drafted, and there was no guarantee it would be passed. Further, that he was aware that Fitzgerald v Muldoon meant he could not base any aspect of the decision on "proposed legislation or future intentions".[108] As to conditions (d), (e) and (f), the Associate Minister deposes:I was concerned about safety and about the possibility that AATH could interfere with ordinary recreational hunting. I was aware that the Wild Animal Control Act is about control of wild animals and about the regulation of hunting, but I considered that preventing hazing of animals was not inconsistent with proper control of game animals. Appendix 4 of the Department's report said that because the Animal Welfare Act did notprohibit hunting and killing in accordance with the Wild Animal Control Act, the department could not place conditions on a heli-hunting permit that restricted herding or hazing. I cannot see the logic in that, but apart from that I saw the conditions more as a matter of holding operators to what they had told me about what AATH actually involved.Facts 5: Post-decision events[109] Following the decision the plaintiffs instituted these review proceedings.[110] On 27 April 2012 the Associate Minister gave an undertaking that he would not make a decision on the applications for concessions to undertake AATH in wilderness areas, pending the outcome of these proceedings. Interim relief allowing the plaintiffs to undertake AATH in wilderness areas during 2012 was sought and12 See [88] above.consented to. The terms of the 2010 concessions, which were "rolled over" to the2011 season, were again extended to continue until 30 September 2012.[111] In regards to concessions for the Olivine, Hooker-Landsborough and Adams wilderness areas, for the five applicants who did not partake in the proceedings public notification occurred. Submissions were made and a public hearing was held on 1 and 2 May. DOC then prepared a final report on the concessions for the Associate Minister.[112] On 13 June 2012 the Associate Minister, granted concessions in wilderness areas, for a two year term. In his decision he said:This will enable the department to investigate the potential role that zoning could play in reducing conflict and producing better outcomes for conservation, for recreational hunters, for AATH operators and for the department.Further, despite the proposed conditions dealing with temporal measures, it is possible that further unforeseen effects may arise. They may not always be able to be addressed adequately or at all through varying the conditions of the permit once granted. A shorter term will provide a more robust process for addressing unexpected and unacceptable adverse effects.I am also mindful that, while the intention to grant was publicly notified, there was scant information from other people who might utilise Wilderness areas – not so much in the middle of winter when I understand conditions severely restrict access, but from early February in the case of those areas where access is to be granted earlier than mid-June. Then of course (although it is of less importance) there are others who may never visit Wilderness Areas but who strongly believe in the philosophy of Wilderness Areas. It concerns me that apart from the hunting sector there has been little comment from these other groups....I consider there is scope to carry out further work using such methodology as social surveys to determine the effects, actual or potential, on them.[113] Finally, on 14 July 2012 the Associate Minister gave a speech at the New Zealand Deerstalkers Association conference. This speech included the following observations:13... I was advised literally on day one that there were various applications in place that needed to be considered under the terms of the Wild Animal Control Act as it currently stands and that the Department of Conservation which was the assumed decision maker had expressed a view – based on the13 Bundle, vol 3, at 499.submission and the evidence that it had received that there was no reason why it could not grant those permits for a period of 10 years. That came to put it mildly as a considerable shock. So I decided that the appropriate course of action was to effectively call those decisions in and review them myself, which I did in the period of January and February of this year. It became clear following discussions with officials with the applications, with our legal advisors that the terms of the Wild Animal Control Act are fairly specific and the ability to stop activities on the basis that one didn't like them wasn't provided for in the legislation so we had a problem and I'mspeaking very frankly here. On the one hand there was an expressed political commitment to phase out heli-hunting within a specified period of time, on the other hand there was this mighty collision looming that saw the potential being there at least for these permits being granted for a ten year period.......I inherited a process where my arm was somewhat up my back before I started.... But as I say my intention is clear and will not be deviated from. We have a slot in the legislative program this year to begin the process of making that change.The counter argument that was put to me which I think is intolerable actually but was to put to me that what we could do is draft these permits for the 10 year period and then just simply overwrite them with retrospectivelegislation. I'm not into that, I think that is deceitful and wrong..... I simplywanted to reassure you that this is a long game and the long goal will be achieved and it will be achieved during this term in Parliament because thatis what we committed to do and that's what will be delivered.Issues[114] The application for review seeks to review specifically:(a) The two year term of the concessions; and(b) The decision to impose the conditions.[115] The plaintiffs seek orders quashing the Associate Minister's decision to the extent it imposes two year terms on the plaintiffs' AATH concessions, directing thatconcession terms of 10 years be substituted, and quashing the additional conditions. An inquiry into damages suffered was sought, but was abandoned at trial.[116] The plaintiffs originally sought to challenge the Associate Minister's decision to notify publicly the intention to grant concessions for AATH in wilderness areas. The plaintiffs no longer pursue that aspect of review.[117] The following issues arise out of the grounds of review:(a) Issue 1: Was the decision unlawful by reason of predetermination?(b) Issue 2: Was the term of the concessions irrational?(c) Issue 3: Did the Associate Minister consider irrelevancies or act for an improper purpose?(d) Issue 4: Was there a breach of the Bill of Rights 1688?(e) Issue 5: Did the Associate Minister breach the plaintiff's legitimateexpectation that concessions would be granted for a 10 year term?(f) Issue 6: If the answer to any of the preceding issues is affirmative, what relief if any is appropriate?Four important preliminary points[118] Before addressing the six issues in detail, it is important to note four important preliminary points.[119] First, although the present applications which the Associate Minister made his decision on were for 10 year terms, the operators had never held concessions for such a term. Until April 2010 the maximum potential terms was five years. This was, therefore, the first occasion on which the Minister or Associate Minister was dealing with an application for 10 years. Perhaps more importantly still, however, there was no evidence before me that operators in fact needed tenure as long as 10 years. No doubt such tenure might be desirable from an investment point of view. But there was simply no evidence detailing that. As to bookings, the furthestadvance bookings in evidence were five years ahead, and that was apparently a rare event.[120] Secondly, since 2007, the operators (and the plaintiffs in particular) had never had more than two years of forward tenure. As at the end of the 2007 season, their concessions were due to expire in September 2009. That is, at the end of the 2009 season. As we have seen, in 2009, 2010 and 2011 the original concessions were rolled over (with some amendments) for no more than a further one year period. There was no evidence of substance before me of chaos, catastrophe, significant dislocation or disadvantage as a result of that limitation. It is, of course, a problem that accompanies any time-limited permit. The headroom runs out.[121] Thirdly, the effect of the December 2011 confidence and supply agreement meant that legislative change (at statutory level) was a distinct possibility. Clearly that could affect the extent of AATH activities on conservation land. That uncertainty appears to be a far more significant matter for investment decision- making than the length of tenure under individual permits pending any such change.[122] Fourthly, as noted earlier, there has in this public argument been a lamentable imprecision of language, which has caused real confusion. In particular on whetherdisapproval of "heli-hunting" relates to the activity in toto, or just to aspects of it. The importance of accurate description is noted at the very beginning of the December 2011 report by the DOC concessions officer:In the past [AATH] was referred to as heli-hunting. There has been thought for some time that a name was required to better reflect the nature of the activity. In January 2011 the New Zealand Conservation Authority ...suggested ... that the name "aerial trophy hunting" be used. The industryresponded that [AATH] was a better description of the activity as although helicopters were used to assist in the search for animals, the animals were then shot on the ground.The political rhetoric, however, has talked at headline level of the phasing out of"heli-hunting", or its days being "numbered". It is clear, however, that the Associate Minister (both before and after his assumption of relevant ministerial responsibilities) has used that expression in a particular way. As his 2010 and 2011 press releases and his sworn affidavit have made clear, his objection is not to heli-hunting in the wider sense of using a helicopter to transport hunters into remote areas, however aggravating that might be to deerstalkers on the ground who have got to their location by wearying, non-mechanical means. Rather, his objection has been to the three controversial practices of aerial shooting, hazing and herding. The former, as we know, is a feature of culling.14 But it is not a feature of AATH. Nor was hazing, because it is counter-productive to AATH. So the real friction betweenthe Associate Minister's position and that of the plaintiffs concerns herding.Issue 1: Was the decision unlawful by reason of predetermination?Submissions[123] The plaintiffs contend that statements the Associate Minister made before and after the delegation of decision-making power to him indicate actual bias. That is,that he is approaching the applications with a closed mind. The plaintiffs' pleadingsdo not attack the grant of delegation directly. Rather the attack is against the decision-making by the Associate Minister pursuant to that grant.[124] It is also apparent that the challenge to the Associate Minister's decision- making based on bias is also based on alleged apparent bias. I will have more to say about that in a moment.[125] Counsel for the plaintiffs submitted that a fair minded observer would say that the Associate Minister bargained to assume the decision-making power in relation to these concessions. So, bearing in mind the surrounding statements by the Associate Minister both before and after making the decision, the same fair minded observer would readily conclude that his exercise of his decision-making power was"tainted by bias".[126] It was submitted that the evidence demonstrated a consistent attitude by the Associate Minister over a period of two years that AATH was unacceptable on conservation land, should be stopped in wilderness areas in particular, and that AATH desirably should be stopped altogether. Mr Withnall pointed particularly to14 See [14](c) above.the Associate Minister's subsequent comments to the New Zealand Deerstalkers Associate Conference on 14 July 2012. Those have been quoted above.15 He pointsto the Associate Minister's reference to an "express political commitment to phaseout heli-hunting" and to "phase out such a practice" in the present term of Parliament. And that was a commitment that would be honoured. Mr Withnall says that those passages demonstrate that the Associate Minister was solely focused on an agenda to end AATH operations altogether.[127] The imposition of conditions precluding shooting and hazing (albeit the plaintiffs say they do not do these things) was submitted to be further evidence of aclosed mind, with "political imperatives taking precedence over statutory requirements".[128] Counsel for the plaintiffs submitted that the Court should not look beyond thedecision letter, the Associate Minister's prior comments and his subsequent comments to the Deerstalkers Association Conference. The Associate Minister's affidavit was condemned as "window dressing".Relevant legal test[129] The argument here appears to be one of per se disqualification. That is to say,that the Associate Minister's public political views amount to an actual bias againstAATH and those who conduct it. So deeply ingrained is the bias that the Associate Minister cannot make a decision at all. Certainly the plaintiffs do not seek that the Court remit the decision, if it finds it unlawful in any respect, to the Associate Minister. Rather, I am asked to now make the decision it is said an unbiased Minister must necessarily have made and direct that the term of the concessions be10 years rather than two. In the sense that the plaintiffs' pleadings deny thelegitimacy of the Associate Minister making the decision at all, it can be seen to be an indirect attack on the delegation to him.[130] The plaintiffs sought also to rely on principles of the law relating to apparent bias. Mr Withnall cited the decisions of the Court of Appeal in Muir v15 At [113].Commissioner of Inland Revenue16 and of the Supreme Court in Saxmere Co Limited v Wool Board Disestablishment Co Limited (No 1).17 Both of those are, however, cases involving alleged apparent bias by judicial officers. The principles expounded there are not appropriate standards to apply in the case of Ministers of the Crown in exercising statutory powers of decision. The proposition that a Minister could effectively discharge his or her duties in the same way that a Judge does need only be stated to be rejected as unsound. The accountabilities, and standards applicable, are altogether different.[131] Here Parliament has determined that the decision maker is to be a Minster, albeit with the ability to delegate to an official. Where Parliament determines that a decision should be made by a Minister, a person of inherently political complexion, it is unavoidable that that person will be influenced by policy and political considerations. It is the role of politicians to form policy positions, and to state those positions. The formation of such policy position may result in a predisposition to decide matters in accordance with a previously stated policy position. The electorate would expect nothing else. But to hold such a predisposition does not necessarily mean that the Ministerial decision maker is biased as a matter of law.[132] I do not think it makes much difference to this analysis how one characterises the decision: whether judicial or administrative. As Sedley J once said, wisely:18 in the modern state the interests of individuals or of the public may bemore radically affected by administrative decisions than by the decisions of courts of law and judicial tribunals. The individual who has just been tried for a minor road traffic infraction will not be much comforted by the fact that he was tried with the full safeguards of the criminal law if on returning home he finds that an administrative decision in which he had no say is going to take away his home or his job.[133] What does make a difference is the patent character of the decision maker. Where Parliament vests the decision in a Minister of the Crown, it must be taken to have accepted that that decision maker will bring a policy perspective to his or her determination, and with it a probable predisposition on the merits. It cannot then be16 Muir v Commissioner of Inland Revenue [2007] 3 NZLR 495 (CA).17 Saxmere Co Limited v Wool Board Disestablishment Co Ltd (No 1) [2010] 1 NZLR 35 (SC).18 R v Secretary of State for the Environment ex parte Kirkstall Valley Campaign Ltd [1996] 3 AllER 304 (QBD) at 323.the case that to make a lawful decision that Minister must delegate away the decision entrusted to him or her by Parliament. The point is well made by Wade & Forsyth:19The significance of the conceptual distinction between predetermination and the appearance of bias lies in the fact that administrative decision makers, unlike judicial decision makers, will often, quite rightly, be influenced, formally or informally, in their decision by policy consideration. They will naturally approach their task with a legitimate predisposition to decide in accordance with their previously articulated views or policies. A fair-minded observer knows this, appreciates there is no question of personal interest, and does not apprehend bias where there is simply a predisposition to decide one way rather than the other in accordance with previous policies. But where the question is whether the decision maker has closed his mind and slipped from predisposition to predetermination it seems unnecessarily complicated to involve the fair-minded observer.[134] In CREEDNZ Inc v Governor General20 the Court of Appeal was dealing with a challenge to the validity of an Order in Council, the effect of which was to bypass all the statutory planning procedures under the National Development Act 1979 and fast track the approval process for an aluminium smelter to be built at the Aramoana Spit, north of Dunedin. The plaintiffs (for whom as it happens Mr Withnall also acted) challenged the validity of the Order in Council, inter alia on the basis that the decision was invalid by reason of bias by predetermination. Specifically, it was alleged that the Ministers had determined in advance to advise and consent to approval of the application for that project to be fast tracked. Cooke Jfound that it was a "fair inference from newspaper reports that from an early stagethe government had "favoured" using the National Development Act for [the project]." But, Cooke J went on:21None of this means, however, that the Government was irretrievably committed to advising the necessary Order in Council. What can properly be inferred is that when the question arose in 1981 the Government wasalready clearly in favour of the company's project and highly likely to decidein favour of an Order in Council.But it is fallacious to regard that as a disqualification. The references in the amended statement of claim to a real probability or suspicion of predetermination or bias are beside the point in relation to a decision of this nature at this governmental level. Projects of the kind for which the National Development Act is intended, whether government works or private works, are likely to be many months in evolution. They must attract19 Wade & Forsyth Administrative Law (10th ed, Oxford University Press, Oxford, 2009) at 390–391.20 CREEDNZ Inc v Governor General [1981] 1 NZLR 172 (CA).21 At 179.considerable public interest. It would be naive to suppose that Parliament can have meant Ministers to refrain from forming and expressing, even strongly, views on the desirability of such projects until the stage of advising on an Order in Council....No doubt, if Ministers had approached the matter with minds already made up, the inference would readily be drawn that they could not genuinely have considered the statutory criteria when advising the making of the Order-in- Council. The newspaper reports fall short of showing closed minds. And the terms of the Order in Council suggest that the minds of the Ministers were not closed.The latter observation was a recognition of the fact that although the application had advanced a number of grounds in support, only two were adopted in the Order in Council.[135] Richardson J took a similar approach:22It is not expected that Ministers will approach their consideration of the application ... with perfect detachment. Before the decision can be set aside on the grounds of disqualifying bias it must be established on the balance of probabilities that in fact the minds of those concerned were not open to persuasion and so, if they did address themselves to the particular criteria under the section, they simply went through the motions.McMullin J also said that it would be "unreal to expect those concerned to maintaina lofty detachment from the matter".23[136] A similar view was expressed by members of the High Court of Australia inMinister of Immigration v Jia.24 In that case the Minister of the Crown had a statutory power to cancel a visa if the Minister was satisfied that a person was not of good character. The Administrative Appeals Tribunal had earlier set aside a decisionof the ministerial delegate refusing Mr Jia's visa application. In doing so it directedthat he qualified for a visa on the basis he was of good character. It then referred the decision back to the Minister. Before making a decision the Minister made statements in a radio interview and in a letter to the president of the AdministrativeAppeals Tribunal expressing concerns about the tribunal's decision and (in the case of the radio interview) expressing views about the manner in which he might deal22 At 194.23 At 214. See also Attorney-General v Unitec Institute of Technology [2007] 1 NZLR 750 (CA).24 Minister of Immigration v Jia (2001) 205 CLR 507 (HCA).with Mr Jia's application. The Minister then decided that Mr Jia was not of good character and cancelled his visa. In the Federal Court French J had decided againstMr Jia's application for review. That was set aside by a majority of the Full Court onappeal. In the High Court of Australia, the Minister prevailed by 4 to 1. Gleeson CJ and Gummow CJ (with whom Hayne and Callinan JJ substantially agreed) expressly followed CREEDNZ. They noted that the Minister was in a different position from a judicial officer, where entirely even-handed judicial decision was expected. Ministers had broad accountability to the electorate and to Parliament, and the statutory powers in this case vested in the Minister entitled him to effectively reverse the decisions of the tribunal even though the Minister had been involved in proceedings before it. Gleeson CJ and Gummow CJ went on:25As the circumstances of the radio interview demonstrate, the Minister himself can be drawn into public debate about a matter in respect of which he may consider exercising his powers. He might equally well have been asked questions about the cases in Parliament. The position of the Minister is substantially different from that of a judge, or quasi-judicial officer, adjudicating in adversarial litigation. It would be wrong to apply to his conduct the standards of detachment which apply to judicial officers or jurors. There is no reason to conclude that the legislature intended to impose such standards upon the Minister, and every reason to conclude otherwise.[137] Following CREEDNZ, Gleeson CJ and Gummow J said:26The Minister was obliged to give genuine consideration to the issues raised by [the statutory provisions] and to bring to bear on those issues a mind that was open to persuasion. He was not additionally required to avoid conducting himself in such a way as would expose a judge to a charge of apprehended bias.[138] Other New Zealand cases have stressed the importance of not confusing concepts of bias (in the sense it is used with a judicial decision maker) with the concept of predetermination that applies to a ministerial decision maker.27 In Travis Holdings Ltd v Christchurch City Council28 Tipping J stressed that proof of actual predetermination – closed mind – was required in the case of a ministerial decision25 At 539.26 At 540.27 Friends of Turitea Reserve Society Inc v Palmerston North City Council [2008] 2 NZLR 661(HC) at [102]; Travis Holdings Ltd v Christchurch City Council [1993] 3 NZLR 32 (HC) at 47.28 Travis Holdings Ltd v Christchurch City Council [1993] 3 NZLR 32 (HC) at 4.maker. In these cases bias is effectively confined to a personal bias or a private pecuniary or proprietary interest.29 Neither applies here.Did the Associate Minister predetermine the applications?[139] The issue the Court must decide is, therefore, whether the decision makerapproached the matter with an open mind, meaning that he will be "prepared, despitepre-disposition, honestly to consider whether to change his mind".30[140] I do not find that the Associate Minister approached the matter lacking that in mind. I will set out, as concisely as I can, my reasons for that conclusion.[141] First, to state the obvious, the concessions were granted. Not on terms sought by the applicants, certainly. But rejection of their stance on conditions or duration cannot without more constitute predetermination by the decision maker. In a situation where an application is granted rather than declined, the primary focus of the Court on judicial review will be on the conventional judicial review grounds, such as purpose, relevancy or rationality, rather than predetermination.[142] Secondly, it is important to understand properly the predisposition actually brought to the table by the Associate Minister. I have found already that despite more dramatic headlines in his press releases and the account offered in less formalmedia such as the deerstalkers conference speech, the Associate Minister'spredisposition was not against heli-hunting or AATH altogether. Indeed such a stance would have made little sense, however popular it might have been with some wholly terrestrial deerstalkers. Heli-hunting is an essential component of the management of troublesome introduced species of game animals. It brings substantial overseas funds into New Zealand. As the content of the press releases,and the Associate Minister's affidavit, made clear, it was two broad aspects of AATHthat concerned him. First, its conduct within wilderness areas. Secondly, specific aspects of its execution: aerial shooting, hazing and herding.29 Woolf, Jowell and Le Sueur De Smith's Judicial Review (6th ed, Sweet & Maxwell, London,2007) at [10–065].30 Friends of Turitea Reserve Society Inc v Palmerston North City Council [2008] 2 NZLR 661 (HC) at [102].[143] Thirdly, as to access to wilderness areas, the abandonment of the plaintiffs challenge to the requirement that concession applications affecting wilderness areas be publicly notified merely confirms that distinct considerations do apply to such areas. There is a legitimate basis for treating wilderness areas differently, under s 20 of the Conservation Act and s 14 of the National Parks Act 1980. Both restrict the use of helicopters in wilderness areas. Subject to public notification and consultation, the Associate Minister appeared open to granting concessions extending to wilderness areas. As a matter of fact the Associate Minister rolled over the plaintiffs previous concessions (including wilderness areas) for a further year, albeit in the context of the present proceedings and a pending application for interim relief. More relevantly, the five non-plaintiff operators who went through the public notification process had two year concessions granted in respect of wilderness areas.[144] Fourthly, as for the conditions, no sensible challenge as to want of an open mind could be brought in relation to those concerning aerial shooting or hazing. The industry itself said it did not practise those. Those conditions may be susceptible to challenge on other grounds, but predetermination is not one of them. More relevantly, the decision shows that the Associate Minister had heard the plaintiffs'representatives on the subject of herding. As I said earlier, the final condition (permitting herding except where it would interfere with the safe enjoyment of conservation land by other users involved in the control of wild animals, such as recreational hunters) represented a relaxation by the Associate Minister of his earlier stance. It is not in those terms a substantial limitation on that practice at all. The condition is less onerous than that previously imposed by the Deputy Director- General, when he was the decision maker.Conclusion[145] I find therefore that the plaintiffs have not established on the balance of probabilities that the Associate Minister approached the decision with a closed mind, unwilling honestly to consider changing his mind. Indeed the evidence is to the contrary effect, given the grant of concessions and his change of stance on herding. The fact that the Associate Minister was at the same time forming policy positions, even strongly, on this issue, and promoting those positions, does not as a matter oflaw disqualify him from making statutory decisions within that policy area, so long as those are not affected by predetermination. If that were not the case, Ministers could not exercise statutory decision making powers, without delegation, in areas of their ministerial responsibility. That is not consistent with parliamentary expectation expressed in the statute.[146] The answer to Issue 1 therefore is "No". The Associate Minister did notpredetermine the concession applications unlawfully.Issue 2: Was the term of the concessions irrational?Submissions[147] The plaintiffs' challenge based on irrationality relates only to the two yearterm of the concession granted by the Associate Minister.31 The grounds of irrationality advanced were that no such time limitation was necessary to identifyadverse effects (other than in relation, perhaps, to wilderness areas) given DOC'sown analysis; power existed to address new and unanticipated adverse effects through s 17ZC of the Conservation Act; DOC officials had recommended a 10 year term, and that the Associate Minister:... had no regard to the fact that operators received bookings for AATH up to three years in advance, and a concession term of two years gives insufficient certainty upon which to make proper business decisions.It was further submitted that there was no basis for restriction having regard to the criteria in, and the purposes and objectives of, the WAC Act 1977.Legal test[148] Mr Withnall submitted that a sliding threshold of review should be applied; any universal standard of reasonableness was redundant.32 He accepts that where the subject involves broad policy or political considerations, the Courts will be more31 A rationality challenge to the requirement for public notification of applications concerningwilderness areas was abandoned at the hearing.32 Joseph Constitutional & Administrative Law in New Zealand (3rd ed, Brookers, Wellington,2001) at 936.prepared to defer to the decision maker. But where there will be a direct effect on individual rights, closer scrutiny is needed.33 Mr Withnall submits that this is such a case.[149] In my view that places the matter at too high a level.[150] First, the "effect" being assessed concerns not what has been granted, butwhat rather has not. In other words, it is the difference between grant for two years and grant for a longer term. Secondly, viewed from the perspective of the plaintiffsthis is a case concerning commercial activity and commercial gain. It is "entirely about money" (or at least very substantially so), to adopt the expression used inPharmaceutical Management Agency Ltd v Roussel Uclaf Australia Pty Ltd.34[151] That being the case, I see no reason here to displace the usual Wednesburystandard of review in relation to rationality. To put it another way, this case falls at a mid-point along the so-called sliding threshold of review. In doing so, I bear in mind that the threshold for intervention on the basis of irrationality is a high one.35[152] The plaintiffs must satisfy me, on the balance of probabilities, that the two year term of the concessions was not a limit that the Associate Minister could reasonably have imposed in these circumstances.Was the Associate Minister's decision irrational?[153] The essence of the complaint is that the Associate Minister's failure to grant licences for the maximum period now possible under s 17Z(1) of the Conservation Act was irrational. Further, that it was irrational given the knowledge DOC had that operators booked AATH up to three years in advance. (I note that there is no evidence that the Associate Minister was advised of pre-booking beyond two years.33 Thompson v Treaty of Waitangi Fisheries Commission [2005] 2 NZLR 9 (CA) at [85].34 Pharmaceutical Management Agency Ltd v Roussel Uclaf Australia Pty Ltd [1998] NZAR 58(CA) at 66. See also HR v Chief Executive, Department of Labour HC Wellington CIV 2008-485-123, 10 June 2008 at [24]–[29].35 See e.g. Lab Tests Auckland Ltd v Auckland District Health Board [2008] NZCA 385; [2009] 1NZLR 776 at [366].His evidence to that effect was not controverted.)36 The substance of the plaintiffs'complaint is that the maximum term available was not granted.[154] I do not find this ground of complaint to be made out on the evidence.[155] First it is here that the observations I made earlier at [119] to [121] assume particular importance. The operators had never held concessions for more than five years. That then was the statutory maximum. There was no evidence that operators needed tenure as long as 10 years. Moreover, operators had since 2007 never hadmore than two years forward tenure. From 2009 they had not had but one year'sforward tenure. Nor was there satisfactory hard evidence before me as to why short tenure now would be so seriously adverse to the industry as to amount to an irrational imposition. Particularly in the absence of evidence of such an effect from as far back as 2007 when short tenure began.[156] Ironically the best evidence of disadvantage came from the Associate Minister. He deposed that at the 25 January 2012 meeting he was told that one operator had lost two bookings because of uncertainty. Obviously operators had continued to take bookings in the expectation that they would obtain concessions. The only plaintiff who deposed otherwise was Mr Herbert, who runs the hunting lodge in the Ahuriri Valley.37 He said in his affidavit that up to 90 per cent of his hunts were sold 18 to 24 months in advance, and that in early 2013 he would not beable to take any bookings for aerial assisted hunts for the 2014/15 season "as we have no idea if we will have permits to operate". Significantly, no other operatorsaid that. Mr Quinn (of Alpine Hunting Adventures Limited) said that he needed to know at least two years out what access he would have, because he booked clients"two, three and sometimes up to four years in advance". That in part directlycontradicts Mr Herbert. Mr Wallis (of Alpine Helicopters) says, but withoutsubstantial underpinning, that "any concession less than the recommended 10 year term would have a significant impact on the viability of Alpine Helicopters". Thisevidence is simply too bare to justify a conclusion of irrationality in the selection of a concession term less than the 10 years sought by the plaintiffs.36 See [88] above.37 See [36] above.[157] Given recent history as to short term tenure, and the lack of adverse consequence demonstrated, it cannot be said that to grant a licence for a two year term only is one that no reasonable Minister, applying his or her mind properly to the question to be decided would have arrived at. The lack of any detailed account of prejudice before me is compelling in relation this point.[158] Secondly, there is no sound reason to believe that the Associate Minister's express rationale for granting a two year term only, on an "incremental" approachand in order to obtain further information, is not genuine. In this it is important to remember that the object of the WAC Act was to make better provision for thecontrol of harmful species of introduced wild animals, and "the means of regulatingthe operations of recreational and commercial hunters, including wild animal recovery hunting using aircraft, so as to achieve concerted action and effective wild animal control". That object is then carried through in s 4(2)(c) of that Act. The Minister's powers under s 5(1)(g) to make provision for the licensing of persons are broad, and must be exercised with regard to the express objects in the Act. But here, where there is conflict between recreational and commercial hunting interests, the Associate Minister was surely entitled to adopt a precautionary approach. All the more so, where the licensing concerned operations on conservation land.[159] Thirdly it also has to be said that the advice the Associate Minister hadreceived from DOC staff that the 10 year permit term was a "default position"simply cannot be correct. No legal principle of public law that I am aware of presumes that a concession that may be granted "for a term not exceeding 10 years"will be granted for that term. Certainly no authority to that effect was cited to me. Such an approach would savour of a discretion fettered. It would be hard to reconcile with the discretionary case-by-case evaluation that Parliament clearlyanticipated when in s 17S(1)(e) it required the concession applicant to state "the proposed duration of the concession and the reasons for the proposed duration".Arguments of presumptive maximum duration have long been seen off under the Resource Management Act 1991.38 In that context, uncertainty as to effects of an activity, or of the effectiveness of conditions, has always been seen as justifying a38 See e.g. Curador Trust v Northland Regional Council Env C Auckland A69/2006, 31 May 2006,at [27].shorter tenured consent.39 Particularly given the prospect of future reapplication. What is required is an evaluation consistent with statute, and statutory purpose. It by no means follows from that that the maximum potential term will be granted. Forofficials to have conceived the maximum as the "default position" was therefore erroneous.[160] Fourthly, I do not consider it can be said that the Associate Minister'sdecision was unreasonable because the DOC report had indicated there was adequate information on the adverse effect of AATH in areas other than wilderness areas. The Associate Minister was not bound by the view of the Department, and was entitled to exercise his own judgment and make his own decision based on the information before him.40 What is important here is that the decision of the Associate Minister was that there was insufficient information before him to grant permits for so extensive a duration as 10 years. That was a radical departure from the previous periods of tenure. Evidence before the Court showed the Associate Minister had gone through the DOC report himself, and had annotated various passages with commentary. His response to the report was, evidently, a considered one.[161] I do not accept that the statutory power to change conditions of concessions under s 17ZC of the Conservation Act 1987 alters the position. That provision existsto deal with unforeseen circumstances, or at least ones that were "not reasonably foreseeable at the time the concession was granted".41 I accept the submission by Mr McCarthy that where a decision maker is aware of potential adverse effects of the concession in making the original decision, those should be addressed in the original decision itself. To postpone that to a condition review process would merely have opened up new and fertile grounds for review at a later stage.39 See e.g. PVL Proteins Ltd v Auckland Regional Council EnvC Auckland A61/2001, 3 July 2001at [31].40 Hastings District Council v Minister of Conservation [2002] NZRMA 529 (HC) at [50](a);Sanford Ltd v Chief Executive of the Ministry of Fisheries HC Wellington CIV 2009-485-379, 12October 2009 at [71].41 Conservation Act 1987, s 17ZC(3)(b).Conclusion[162] The answer to Issue 2 is "No". The two year term of the concessions was notunreasonable.Issue 3: Did the Associate Minister consider irrelevancies or act for an improper purpose?Submissions[163] I start by noting that Mr Withnall accepted in argument that this ground was really subsumed into the irrationality ground. The submission then made was that in making the decision to grant concessions for two years only, and to publicly notify the wilderness concessions, the Associate Minister exercised his power for an improper purpose. The improper purpose was said to be achieving political advantage by being seen to act upon the explicit support his party had given to ending AATH in their election manifesto and the Confidence and Supply Agreement with the National Party. The plaintiffs say that this purpose was inconsistent with the policy of the WAC Act 1977 and therefore improper.[164] It was also submitted that much of the evidence showing that the Associate Minister exercised his powers for an improper purpose also demonstrated that the Associate Minister took into account irrelevant considerations. More specifically, it is said that the Associate Minister took into account animal welfare ethics, the issues of herding and hazing, public perception, New Zealand's reputation overseas, and hispolitical agenda, all of which were irrelevant. The conditions imposed on the concessions that prohibit hazing, herding or firing from a helicopter were said to be"unnecessary". No formal vires challenge to these conditions was brought, however. Indeed Mr Withnall was constrained to accept that they "may well be intra vires".Discussion[165] To the extent that this submission by the applicants focuses upon irrelevant considerations or improper purpose, it is substantially repetitive of the pre-determination ground dealt with under Issue 1 and, as to term, the irrationality ground under Issue 2.[166] The distinct focus of the case pleaded, and the submission then made to me, however, was the imposition of the additional conditions which prohibit shooting from helicopters, hazing and herding.[167] I cannot accede to these submissions in the context of the case, and the arguments presented.[168] First, s 17X of the Conservation Act 1987 contains very broad powers to impose conditions which the Minister "considers appropriate for the activity". Itshould therefore be noted at once that the conditions prohibiting hazing and shooting from helicopters do not seem to go beyond what the operators themselves have recognised as being appropriate for the activity. To that extent those conditions, which it is accepted were intra vires, cannot be objected to as being motivated by anti-AATH sentiments.[169] Secondly, the position in relation to herding is admittedly slightly different. The operators do take continuing issue with this condition. Albeit they recognise that in its final form,42 the Associate Minister having relented to a significant degree, it is a relatively insubstantial constraint. That limited degree of constraint is important. The adverse effect of the condition is less than initially feared. It is less than imposed in the 2010 and 2011 concessions,43 and it is less than DOC officials had recommended. To the extent the 2012 herding condition imposes constraint, in my view it focuses legitimately on potential conflict between competing users. The two limitations in condition (f) make that clear.[170] Thirdly, I do find that the Associate Minister's decision in imposing thesethree conditions was in part motivated by animal welfare concerns. Given the breadth of ss 4(2) and 5(1)(g) and (h) of the WAC Act and 17X of the Conservation Act, such concerns are not ipso facto irrelevant or improper. I accept however that42 See [98](f) above.43 See [50] and [62] above.this motivation was subsidiary to the primary motivation to impose conditions appropriate for the activity that either accord with industry practice or are appropriate to moderate conflict with other users.[171] The existence of a collateral purpose does not invalidate the exercise of a statutory power, so long as the power is exercised primarily for proper purposes contemplated by the Act. But the additional purpose must not run counter to, thwart, circumvent or subvert the proper statutory purpose. The official authorised purpose must not just be window-dressing for other unauthorised purposes, which are the dominant purpose for the administration action concerned.44[172] I am satisfied that that is not the case here, however. In particular, the conditions reflect appropriate conditions for the conduct of AATH (including to resolve potential conflict with other recreational hunters) and do not undermine the WAC Act's purposeof achieving "concerted action and effective wild animal control".Conclusion[173] The answer to Issue 3 is also "No". The Associate Minister did not consider irrelevant considerations or act for an improper purpose. To the extent that animal welfare considerations entered his considerations, they were subsidiary to and not contrary to the primary purpose for which the decision-making power was given and exercised.Issue 4: Was there a breach of the Bill of Rights 1688?Submissions[174] The plaintiffs also claim that the Associate Minister breached s 1 of the Bill of Rights 1688 by purporting to suspend an Act of Parliament by executive authority without the consent of Parliament.44 Attorney-General v Ireland [2002] NZLR 220 (CA); New Zealand Airline Pilots' AssociationIndustrial Union of Workers Inc v Civil Aviation Authority of New Zealand HC Wellington CIV-2011-485-954, 13 July 2011 at [74][175] Mr Withnall submitted that the effect of the conditions that the Associate Minister imposed on AATH concessions was to suspend the Wild Animals Control Act 1997, pending action by the legislature to further restrict AATH. It is said that the shooting, hazing and herding conditions amount to backdoor introduction of policy that the Associate Minister had committed to implementing in the legislature.Discussion[176] The Bill of Rights 1688, that statutory re-enactment of Parliament's hard- edged welcome to William and Mary after the Glorious Revolution and the de facto abdication of James II, provides (so far as is relevant):That the pretended power of suspending of laws or the execution of laws by Regall Authority without consent of Parlyament is illegall; That the pretended power of dispensing with laws or the execution of laws by Regall Authoritie as it hath beene assumed and exercised of late is illegall.[177] The most celebrated application of this provision in the New Zealand common law is of course the case of Fitzgerald v Muldoon45 in which the then Chief Justice, Wild CJ, declared unlawful a statement made by the then Prime Minister, the Rt Hon R D Muldoon, (to the effect that the compulsory requirement for employer contributions to the then New Zealand Superannuation Scheme "will cease as from today", in anticipation of repealing legislation being passed in the next Parliamentarysession). As Wild CJ observed:It is a graphic illustration of the depth of our legal heritage and the strength of our constitutional law that a statute passed by the English Parliament nearly three centuries ago to extirpate the abuses of the Stuart Kings should be available on the other side of the earth to a citizen of this country which was then virtually unknown in Europe and on which no Englishman was to set foot for almost another hundred years.[178] I do not find this ground to be made out.[179] First, I accept that the Associate Minister had been trenchant, even strident, in his condemnation of aspects of heli-hunting. And that he had an agenda of legislative change and a reinforced mandate for that by virtue of the confidence and supply agreement. In then discharging his statutory function to grant concessions45 Fitzgerald v Muldoon [1976] 2 NZLR 615.under the existing legislative regime, the Associate Minister was walking something of a tightrope. But the tightrope was capable of being made a safe suspension bridge provided the Associate Minister had due regard to his duty to make his decision on the concession applications under the law as it then stood. In this case the Associate Minister has sworn an affidavit stating that he was explicitly conscious of the principles expressed in Fitzgerald v Muldoon (which had after all been drawn to his attention by counsel for the plaintiffs in his email of 21 December 2011)46 and did not make his decision on the basis of the potential future form of the legislation. That is not a decisive factor, but it is important.[180] Secondly, and more importantly, I have already found that the AssociateMinister's decision on the concessions – in particular, as to term – was not unlawful for predetermination, irrationality, impropriety or irrelevancy. By implication, I have also found it intra vires. Although the two year term is controversial, it was a decision the Associate Minister was in all the circumstances entitled to make. In these presents the Associate Minister's decision cannot be said to have involvedsuspending the WAC Act's operation. The decision was one within the AssociateMinister's lawful authority on the legislation as it stood.Conclusion[181] The answer to Issue 4 is "No". The Associate Minister did not breach the Billof Rights 1688, and did not in making his decision purport to suspend an Act of Parliament by executive authority without Parliamentary consent.Issue 5: Did the Associate Minister breach the plaintiffs' legitimate expectation that concessions would be granted for a 10 year term?Submissions[182] The plaintiffs allege that they had a legitimate expectation that concessions would be granted for a 10 year term. It is said that the Associate Minister knew that most of them took bookings up to three years in advance. They imply that their46 See [83] and [84] above.businesses would not be viable without long-term concessions. They say they had participated in the process in order to secure long term concessions, and acted in reliance upon that expectation by continuing to operate with substantial overhead costs. They say until the Associate Minister was appointed, all indications were that concessions when granted would be for five to 10 years. They point to the 10 yearterm recommended by the concessions officer's report, which was provided to theAssociate Minister, as evidence of this expectation.Discussion[183] I do not find this ground made out.[184] First, the claim is for a substantive legitimate expectation as to the term of concession. Such a form of legitimate expectation remains controversial in New Zealand. The assembled authority is largely at High Court level. That Court has danced with the doctrine for a long time, but seldom taken it home. Such recent Court of Appeal authority as there is is hostile to substantive legitimate expectation, although it does not shut the gate altogether.47 The prevailing trend is I think against its recognition, except perhaps in a truly exceptional case. But in such a case another more conventional ground of review is likely to be available. It is tempting to think that substantive legitimate expectation adds little colour to the palette of review grounds.48[185] Secondly, in this case, as Mr Withnall acknowledged in oral submission, the plea of legitimate expectation is not based on any express assurance. Rather, he said, it was based on past practice; one of granting previously the maximum period for which a concession could be granted. However that seems a long bow to draw. The evidence before me demonstrated but one prior grant, in 2004, for the full term then available. And that grant was associated with controversy, as to whether it actually enabled AATH at all.49 One grant does not a practice make.47 GXL Royalties Ltd v Minister of Energy [2010] NZCA 185, [2010] NZAR 518 at [45]; cf Burt vGovernor-General [1992] 3 NZLR 672 (CA) at 679 (categories of legitimate expectation "notclosed").48 Certainly it did not feature high in the plaintiffs' order of grounds in this case.49 See at [39].[186] Thirdly, the maximum term for permit concessions was changed from five to 10 years from 20 April 2010, under s 6 of the Conservation Amendment Act (No 1) 2010. As Mr Withnall accepted, the applicants were aware that Mr Cuddihy and others they engaged with in the South Island DOC offices were not the decision makers on the applications for the concessions from 2011. The decision maker for the 2011 concessions had been a Deputy Director-General. It must have been apparent that Mr Cuddihy, at a level below that of decision maker, could not make any binding decision or give any binding assurance on matters such as term.[187] Fourthly, the evidence of encouragement (given no particular assurance is pointed to) is slender. It is I think important to note that the letter issued by the conservator (Mr Cuddihy) on 4 June 2010 to the president of the Safari Club International, on which some reliance is placed, gave no assurance as to any particular term. Rather, it reflected that the Department was looking to provide for the future – "for the next five to 10 years". That in its own terms offers a clear suggestion that DOC at least was not necessarily looking beyond a five year term.[188] Finally, there is merit also in Mr McCarthy's submission that the applicants were, throughout the negotiations on the AATH concessions, represented by very senior and experienced counsel. He would have been well aware that the term of the concession was a discretionary matter. And, that an official could not fetter the Ministerial decision maker's discretion. Nor could that official pre-determine the term of the concession.[189] This is not, therefore, a case in which the applicants could be said to hold a legitimate expectation as to a concession term of 10 years.Conclusion[190] The answer to Issue 5 is also "No". The plaintiffs had no legitimateexpectation to be granted concessions for a 10 year term.Issue 6: If the answer to any of the preceding issues is affirmative, what relief if any is appropriate?[191] Given the conclusions I have reached on the five preceding issues, none of which are affirmative, this issue no longer arises.Summary of reasons[192] At the cost of making a lengthy judgment lengthier, I summarise my reasons for dismissing the present application for judicial review:(a) First, the Associate Minister's public statements about heli-huntingand AATH are trenchant. The plaintiffs' frustration at being awardedconcessions for a two year term only (when the statute provided for up to 10) is understandable. But they have not persuaded me that that action strayed across the boundary between legality and illegality.(b) Secondly, the fact that the Associate Minister expressed trenchant views, some of which he has since corrected, does not mean his decision is voidable for bias or predetermination. Authorities concerning judicial bias (actual or apparent) are not apposite here. As I say above, where Parliament determines that a decision should be made by a Minister, a person of inherently political complexion, it is unavoidable that that person will be influenced by policy and political considerations, and likely that he or she may have a predisposition to decide in accordance with a previously stated policy position. To hold such a predisposition does not necessarily mean that the Ministerial decision maker is biased as a matter of law. The proper question is whether the Associate Minister here approached the question matter with an open mind, prepared honestly to consider changing it. The record here shows that the Associate Minister in fact did so, granting the concessions and significantly watering down his previous stance on the practice of herding (i.e. the use of helicopter positioning todirect trophies towards hunters). That practice is now permitted, except in rare instances.(c) Thirdly, the primary attack on the two year concession term was based on irrationality. An attack on this ground throws focus on both decision maker and those affected. As to the latter, a distinct problem for them in this case was the absence of satisfactory hard evidence as to why short tenure would be so seriously adverse to the industry as to amount to an irrational imposition. Since 2007 the industry had not had concession tenure for more than two years; since 2009 not more than one. As I say above, there was no evidence of substance before me of chaos, catastrophe, significant dislocation or disadvantage as aresult of that limitation. As to the decision maker, the "incremental"approach adopted by the Associate Minister was justifiable given conflict between recreational and commercial hunting interests. There is no general presumption that a licence must be granted for the maximum possible tenure. The decision of the Associate Minister was one that could reasonably be made.(d) Fourthly, I do not find that the plaintiffs enjoyed a legitimate expectation to a 10 year concession term. Putting to one side that that involved the assertion of a substantive legitimate expectation, as to which the common law of this country is at best unsettled and more generally hostile, no representation or practice justified its inference. The industry had been given a licence for the then-maximum five year term in 2004, but at that stage it was unclear whether it even permitted AATH. Thereafter terms of two years and one year only had been extended.(e) Finally, the lesser grounds of review in this case, impropriety, irrelevancy and an alleged breach of the Bill of Rights 1688, were not sustainable on the facts.Result[193] The application for judicial review is dismissed.[194] The respondent is entitled to costs. If not agreed, I will receive brief memoranda.Stephen Kós JSolicitors:Gallaway Cook Allan, Dunedin for PlaintiffsCrown Law, Wellington for Defendant