CHIEF EXECUTIVE, MINISTRY OF FISHERIES V BRACE AND ANOR HC WN CIV 2005-485-1982

CHIEF EXECUTIVE, MINISTRY OF FISHERIES V BRACE AND ANOR HC WN CIV 2005-485-1982 6 April 2006IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY CIV 2005-485-1982UNDER the Declaratory Judgments Act 1908 and the Judicature Amendment Act 1972 BETWEEN CHIEF EXECUTIVE, MINISTRY OF FISHERIES Applicant AND MALCOLM JACK BRACE AND ARTHUR JACK BRACE First Respondents AND CATCH HISTORY REVIEW COMMITTEE Second Respondent Hearing: 1 March 2006 Appearances: P A McCarthy for applicant First respondent Malcolm Jack Brace in person S Bacon for second respondent Judgment: 6 April 2006 at 2.15 p.m.JUDGMENT OF MACKENZIE J[1] This is an application for review of a decision of the Catch History Review Committee delivered on 6 September 2005. [2] Mr Malcolm Brace and his father, Mr Arthur Brace, are fishermen, fishing out of Westport. Among their fishing activities is fishing for crayfish. To bait their pots, they use kahawai, which they catch for that purpose. Until October 2003, kahawai was not subject to the quota management system under the Fisheries Act 1996 ("the Act"). When it was introduced into the quota management system, the Braces' provisional catch history had to be calculated, for the purpose of allocatingquota to them. The applicant, the Chief Executive of the Ministry of Fisheries, calculated their provisional catch history, for a 12 month period in the qualifying years 1 October 1990 to 30 September 1992, at 281 kilograms of kahawai, in Area 3. The Braces appealed against that allocation to the Committee. In its decision, the Committee amended the allocation from 281 kilograms to 22,120 kilograms. It is that decision which the Chief Executive seeks to review. [3] It is common ground that the Braces were eligible to receive a provisional catch history for kahawai under s 32(1)(a)(iv) of the Act. Their provisional catch history was to be calculated under s 34(1)(c) of the Act as "the total weight of eligible catch reported in the person's eligible returns in respect of a period of 12 consecutive months within the qualifying years". The term "eligible catch" is defined in s 34(2) to mean "the total weight of all the catch of the relevant stock lawfully taken and lawfully reported as landed or otherwise lawfully disposed of by a person eligible to receive provisional catch history under section 32 of this Act during the applicable qualifying years; and also includes fish, aquatic life, or seaweed of that stock reported as taken and used as bait". The Braces had filed catch effort landing returns ("CELRs") in respect of their fishing activities over the qualifying period. In three months in 1991, August, September and December, they reported catches of kahawai in Quota Management Area 3 of 126 kilograms, 20 kilograms and 135 kilograms respectively. Those were the only catches of kahawai reported in the CELRs during the qualifying years. It was those reported catches which formed the basis of the allocation of the 281 kilograms of provisional catch history. [4] The Braces had, however, caught more kahawai than that, but had not included it in their CELRs. The reasons for that were examined at some length by the Committee. The Committee found that the factual position is that there is a long history of confusing circumstances and communications between the Ministry and the Braces affecting their permitting for fishing for bait purposes. The Ministry's representative before the Committee accepted that there was considerable uncertainty throughout the catch history qualifying years as to whether a permit was required to entitle any commercial fisher to fish and target fish to use for bait for other fishing activities. The Committee found as a fact that they are long-timefishers for kahawai for the purpose of baiting their crayfish pots. It also found that the Ministry accepted that there was no consistent and clear policy issuing from the Ministry during the qualifying years as to whether a permit was required for bait fishing. It found that at one point the Braces did have a permit for bait but it was removed by the Ministry. The Committee found the facts to be that the Braces received confused and conflicting messages from the Ministry during the qualifying years as to whether they were required to report what they caught for bait purposes, even during the period when they had a permit for such activity. [5] It is unnecessary for me to recite the lengthy consideration which the Committee gave to the sequence of events and the communications between the Braces and the Ministry. The Committee recorded in paragraph 21 of its decision that the end result was that the Braces continued to set net for kahawai, although not for sale, and caught significant amounts, the majority of which they did not report, because that is what they understood they were told by the officer of the Ministry with whom they had been dealing. In the absence of confirmation of the position, they did not report. The Committee noted that a letter from the officer with whom they had been dealing provided support for some, although not all, of the propositions put forward by the Braces as to matters of fact in relation to what was to be reported and what was not to be reported. The Committee said:But the essential point emerging from the unchallenged facts presented by the appellants is that the appellants did not receive precisely clear or consistent advice from the Ministry despite requesting it in such circumstances where it became very much an open question as to whether the bait being caught by the appellants (which even on the Ministry's case did not apparently at relevant times require a permit – itself an unusual circumstance) was to be reported – because the appellants did not understand they were required to report.[6] There was what is described by the Committee as an audit of the situation, covering the period when the uncertainty as to the licensing and reporting requirements existed,. In the course of that, Mr Malcolm Brace wrote to the Ministry on 1 March 1994. In that letter he said:In response to your audit on non-quota species and following our recent conversation we have attempted to give a conservative estimate on the amount of Kahawai used by our partnership under the bait license.As you are aware, it was not a requirement to record bait catches in the CELR's and apart from a few exceptions we have not done so. I have enclosed for your interest copies of our correspondence with MAF on this issue. It remains unresolved at this point in time.[7] Enclosed with that letter was an estimate of the catches in the relevant period, based on the records as to the number of crayfish pots baited on each day, and an estimate of the amount used per pot for bait. That schedule of estimates covered the period from 1 October 1990 to 30 September 1992. The Committee said of this at paragraph 25:. It is relevant in my opinion that this material was made available to the Ministry in 1994 during the period of extensive correspondence between the appellants and various agencies wherein the appellants sought assistance in respect of the "bait licence" uncertainty; and "reporting" uncertainty.[8] During the hearing, the Committee invited the Ministry's representative to consider the contents of that audit. The parties were invited to review and consider the accuracy of those figures. They did so, and agreed on catches for the best 12 months in the qualifying period, being January 1991 to December 1991, where the catch was estimated at a total of 22,120 kilograms. That agreement was reached without prejudice to the Ministry's position that those figures could not be taken into account, in that the filed CELRs could not be now amended to include that estimate. [9] The Committee then considered that question and said:32 I have reached the conclusion that it does not offend against the provisions of the legislation to recognise the justification for amending the CELRs which were filed by the appellants during the relevant period to include the additional kahawai catches. I am satisfied that the uncertainty as to MAF policy over permitting for the purposes of bait catching cannot be held against the appellants in this case. The Ministry accepted that during the qualifying years it was not a requirement that those catching non-quota species for bait were required to have a permit for this purpose. Indeed MAF told the appellants to continue to set net and catch kahawai – indeed target kahawai for bait purposes, but not target for sale. The appellants complied with that instruction. 33 Although the appellants did not comply with the advice given by Mr Bishop that although they did not need to report kahawai caught for bait purposes in their ARNs they should report it in their CELRs, when pressed by the appellants to have that decision confirmed in writing the relevant MAF officer, Mr John Duffield, declined to do so.34 In the circumstances I am satisfied that without impunity the CELRs can be amended to include the best 12 months kahawai catch at 22,120 kgs in accordance with the schedule completed by the Ministry advocate and Mr and Mrs Brace for the appellants on 22 August 2005 at the hearing.[10] The issue for this Court is whether the decision of the Committee that the figures submitted in 1994 could be included in the provisional catch history is correct in law. Mr McCarthy for the Ministry submits that it is not. He noted that the Committee described the issue before it in these terms:. For reasons which will become clear I approach this case on the basis that all the CELRs with which this appeal is concerned were filed on time, in accordance with the Act and Regulations, to the point where it can be accepted that with amendment to rectify omissions in those returns, the relevant catches of kahawai can meet the requirement under s.34(2) of the Act that they were lawfully reported.He submits that the scheme of the legislation is such that only the catches disclosed in the CELRs can be taken into account. [11] In essence, Mr McCarthy's submission is that, when the terms of the legislation are correctly applied, having regard to the scheme and purpose of the legislation, the proposition that the Committee had the ability to amend to rectify omissions in the CELRs is wrong in law. Mr McCarthy emphasises the importance in the legislation of accurate catch returns. He refers to the definitions of "eligible catch" in s 34(2) and of "eligible return" in s 32(2). He also refers to the Parliamentary history of the legislation, and the changes which were introduced by the 1996 Act in place of the previous Fisheries Act 1983. He submits that a clear intention is demonstrated to tighten the criteria for the allocation of quota, and so to limit the powers of the Committee to depart from the information in the returns when considering an appeal against the Chief Executive's allocation. [12] The rights of appeal are contained in s 51 of the Act. The relevant provisions are s 51(1)(b)(iii) and (v). Those confer a right of appeal against the following:(iii) A decision of the chief executive as to the quantum of eligible catch reported in any eligible returns made by any person eligible to receive provisional catch history, on the ground that— (A) The information on the relevant returns held by the chief executive has been incorrectly recorded by the chief executive; or(B) The chief executive has excluded fish, aquatic life, or seaweed that was lawfully taken and lawfully reported in eligible returns from the person's eligible catch; or . (v) An allocation of provisional catch history that is different from the amount to which the person is entitled under section 34 of this Act.[13] The function of the Committee under s 284(1) is to hear and determine appeals made under s 51. Section 284(3) provides:(3) The Committee shall not create or allocate provisional catch history in respect of fish, aquatic life, or seaweed unless it was actually taken and reported by a commercial fisher.[14] Mr McCarthy submits that it is a statutory requirement that "eligible catch" must be reported in "eligible returns", both of those terms being defined. That is the way in which the provisional catch history is defined in s 34(1)(c). It is to be noted, however, that s 34(2), in defining "eligible catch", does not use the term "eligible returns" as defined in s 32(2). What it requires is that the catch must have been "lawfully taken and lawfully reported as landed or otherwise lawfully disposed of". The term also includes fish "reported as taken and used as bait". That difference in terminology gives rise to two issues: (a) Is the reporting of the catch in the schedule supplied by the Braces to the Ministry in 1994 properly to be regarded as the "lawful reporting" of that catch, so as to bring the catch so reported within the definition of "eligible catch"? (b) If so, does the Committee have jurisdiction to amend the CELRs to include "eligible catch", which was lawfully reported, but not in an "eligible return", so as to bring that eligible catch within the provisional catch history under s 34? [15] The first question is whether the fish reported in 1994 was lawfully reported. Insofar as it is a question of fact whether the catch was reported or not, that was a matter for the Committee, and there is no basis on which this Court could disturb the Committee's finding that the catch had been reported. As to whether that reporting was lawful, there is no suggestion that the reporting in 1994 was unlawful in anyway. What is alleged is that the catch ought to have been included earlier in CELRs. It is not necessary for me to decide whether that was as a matter of law required or not. Even if the omission of the catch from the CELRs was unlawful, so that there was a failure to comply with an obligation to report the catch in those returns, that fact would not of itself taint the subsequent reporting, so as to render that unlawful. The Ministry has had the information since 1994, and there is no issue taken as to the correctness of the information. In those circumstances, I consider that it was within the power of the Committee to reach the conclusion that the relevant fish was "lawfully taken and lawfully reported" or "reported as taken and used as bait", so as to fall within the definition of "eligible catch". [16] That conclusion makes it necessary to deal with the second question, namely whether the Committee has jurisdiction to amend the CELRs to include that catch in the provisional catch history. [17] Mr McCarthy submits that the clear intention of the legislation, both in its terms and when read in the light of the legislative history, is to limit appeal rights to three relevant grounds: (a) incorrect recording by the Chief Executive of information on the relevant returns; (b) the exclusion by the Chief Executive of fish included in the relevant returns; (c) an allocation of a provisional catch history different from that amount to which the person is entitled under s 34. [18] While I accept that submission, it does not lead me to the conclusion that the Committee does not have jurisdiction to amend the returns by including "eligible catch" which has been omitted from the returns but lawfully reported in another way. The existence of the third ground of appeal suggests that there may be cases in which a provisional catch history as allocated may be different from that under s 34, by reason of factors other than those covered by the first two grounds. But, if there is no ability to amend returns, it is difficult to see how the Committee could deal with acase falling within (c), unless that case also fell within (a) or (b). Further, the use of the term "eligible catch" suggests that catch coming within that term is eligible for inclusion in a provisional catch history, and that the powers of the Committee should extend to making amendments to eligible returns to ensure that this objective is achieved. A further factor which points to the conclusion that the power of the Committee is wider than that of merely correcting errors in the Chief Executive's calculations from the returns is s 284(3). Because the definitions of "eligible catch" and "eligible return" are necessarily limited to fish "actually taken and reported", s 284(3) is otiose if the Committee has no power in respect of fish other than "eligible catch" reported in an "eligible return". Its inclusion suggests that there may be situations where the Committee may take actions having the effect of creating or allocating quota in respect of fish which was actually taken and reported, but which was not included in an eligible return. Those factors, together with the extensive provisions as to the powers and procedures of the Committee, support Mrs Bacon's submission that "the Committee's role is far more extensive than that of a scrutiniser of the Chief Executive's arithmetic calculations". [19] Accordingly, I am of the view that the powers of the Committee are not so limited as Mr McCarthy submits, but extend to enabling the Committee to make an adjustment in respect of fish which has been actually taken, and lawfully reported so as to fall within the definition of "eligible catch". Such a power is, even on that view, a quite tightly constrained one. I do not consider that the tightening of the quota system which occurred under the 1996 Act has resulted in the exclusion of the ability to make such an adjustment. [20] In considering the amendments, and the intention which they demonstrate to tighten appeal rights from those previously existing, it is important not to overlook, or to give insufficient weight to, a number of important policy considerations. These include: (a) the need to ensure compliance with reporting obligations by fishers; and(b) the importance of accurate information as to catches for the purposes of making policy decisions concerning the quota management system and the management of fish species and stocks; and (c) the difficulties for the maintenance of the integrity of the quota management system, and the dangers for the management of fish stocks, if appeal rights allow the allocation of quota beyond that supported by historical catch. In the circumstances of this case, the following points are relevant, on each of those matters: (a) The Committee has held that the failure to include the catch in the CELRs arose from the failure of the Ministry to give "precisely clear or consistent advice", and the Braces' consequent understanding that they were not required to report; and (b) Information as to the relevant catches, which was not challenged as to accuracy, was available to the Ministry from 1994, and kahawai was not introduced into the Quota Management System until 2003; and (c) The Committee's decision in this case has not led to an allocation of quota in respect of fish which was not actually taken and reported. In these circumstances, to limit the powers of the Committee in the way submitted by the Ministry, and to hold that the Committee had no jurisdiction solely because of the form in which the relevant information was supplied, would be to allow form to prevail over substance. [21] For these reasons, the application for review of the Committee's decision must fail. [22] Costs are reserved. If the parties are unable to resolve issues of costs and disbursements, they may submit memoranda. For their assistance, I indicate my preliminary views:(a) The Braces were represented by Mr Malcolm Brace and Mrs Linda Brace. As they were self-represented, no award of costs is appropriate. An award of disbursements is, however, appropriate. I will fix disbursements if the parties are unable to agree. My preliminary view is that disbursements should include reasonable and actual travel and accommodation costs for both Mr and Mrs Brace. While Mrs Brace did not, strictly speaking, have any right of audience, I did hear from her, and her familiarity with the issues was such that her presence at the hearing, for the purpose of assisting Mr Brace, was necessary, even if I had not adopted the convenient course of hearing from her direct. (b) The Committee departed from the usual stance of a decision-maker in such matters, which is to take no active part. It did so because the Braces were not legally represented. That was appropriate, and Mrs Bacon made helpful submissions to me. This would, in my view, make an award in favour of the second respondent of costs on a 2B basis appropriate. "A D MacKenzie J"SolicitorsCrown Law Office, Wellington, for applicant Izard Weston, Wellington, for second respondent