FISHERIES INSHORE NEW ZEALAND LIMITED v ROYAL FOREST & BIRD PROTECTION SOCIETY OF NEW ZEALAND INCORPORATED [2023] NZCA 359

FISHERIES INSHORE NEW ZEALAND LIMITED v ROYAL FOREST & BIRD PROTECTION SOCIETYOF NEW ZEALAND INCORPORATED [2023] NZCA 359 [10 August 2023]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA426/2021[2023] NZCA 359BETWEEN FISHERIES INSHORE NEW ZEALANDLIMITEDAppellantAND ROYAL FOREST & BIRD PROTECTIONSOCIETY OF NEW ZEALANDINCORPORATEDFirst RespondentMINISTER OF OCEANS AND FISHERIESSecond RespondentTE OHU KAI MOANA TRUSTEELIMITEDThird RespondentHearing: 15 and 16 March 2022Court: Brown, Courtney and Goddard JJCounsel: B A Scott and A Kraack for AppellantS R Gepp and M C Wright for First RespondentN C Anderson and K F Gaskell for Second RespondentJ P Ferguson and C Conroy-Mosdell for Third RespondentJudgment: 10 August 2023 at 11.30 amJUDGMENT OF THE COURTA The appeal is dismissed.B The cross-appeal is dismissed.C The appellant and second and third respondents must pay the firstrespondent costs for a standard appeal on a band A basis, with secondcounsel certified, and usual disbursements.____________________________________________________________________REASONSPara noBrown and Courtney JJ [1]Goddard J (dissenting) [155]The judgment of Brown and Courtney JJ was delivered by COURTNEY J.Table of ContentsPara noIntroduction [1]Issue 1 — the approach to setting the TAC under s 13(2)(b) [5]Issue 2 — probability of rebuild [8]The statutory framework [12]The purpose of the Fisheries Act [12]Section 13 — setting the TAC [14]The legislative history of s 13(2)(b) and (3) [17]The Harvest Strategy Standard [28]The Operational Guidelines [33]The 2018 decision [35]The 2019 decision [39]Issue 1: Is the "appropriate period" within which the rebuild mustoccur under s 13(2)(b)(ii) to be determined separately from the "wayand rate" of rebuild under s 13(2)(b)(i), and can social, cultural andeconomic factors be taken into account in determining the"appropriate period"?[46]The High Court decision [46]Fisheries Inshore's argument [52]The Minister's argument [58]A preliminary point [62]Our view [64]Was the Minister entitled to consider the IRP under s 13(2)(b)(ii)? [95]Submissions on behalf of Te Ohu [97]Issue 2: 70 per cent probability of achieving rebuild plan as a relevantconsideration[103]The issue on appeal [103]Does the HSS specify 70 per cent as the default probability for arebuild plan?[116]Is the default probability standard of 70 per cent in the HSS animplied mandatory consideration?[125]Was the Judge entitled to consider whether the HSS was "the bestavailable information" for the purposes of s 10(a)?[129]Did the Judge err in finding that the HSS was "the best availableinformation"?[132]Did the Judge err in finding that the HSS was an impliedmandatory consideration?[142]Conclusions and result [151]Introduction[1] Under the Fisheries Act 1996, the Minister of Oceans and Fisheries(the Minister) must set a total allowable catch (TAC)1 and a total allowablecommercial catch (TACC)2 in respect of fish stocks that are subject to the quotamanagement system (QMS). If a stock has fallen below the level that can produce themaximum sustainable yield (MSY) — the greatest amount that can be taken from afish stock over time without affecting the stock's ability to sustain itself throughnatural growth and reproduction — s 13(2)(b) of the Fisheries Act requiresthe Minister to alter the TAC to enable the stock to be restored to that level.This appeal raises questions about how TACs are set under s 13(2)(b).[2] The appeal arises from the 2019 TAC set for the East Coast tarakihi stock.3This stock has significant commercial value, and is important to both recreationalfishers and Māori. In 2018 and 2019, following assessments indicating that theEast Coast tarakihi stock had fallen below recognised limits for sustainability,the Minister reduced the TAC and TACC. The 2018 decision reduced the TACC by20 per cent. There was no challenge to that decision. The 2019 decision reducedthe TACC by a further 10 per cent and implemented an industry rebuild plan:the Eastern Tarakihi Management Strategy and Rebuild Plan (IRP).[3] The Royal Forest & Bird Protection Society of New Zealand Inc (Forest& Bird) successfully challenged the 2019 decision in proceedings before theHigh Court.4 Fisheries Inshore New Zealand Ltd (Fisheries Inshore) appeals the1 Section 13.2 Section 20. The total allowable commercial catch (TACC) is the proportion of the total allowablecatch (TAC) which can be harvested by commercial fishers after allowances for non-commercialcatch and other forms of mortality.3 The East Coast tarakihi stock represents the majority of the tarakihi catch in New Zealand.It comprises all or part of the stock within the quota management areas known as TAR 1, TAR 2,TAR 3 and TAR 7 which are found along the East Coast of New Zealand and the eastern part ofthe Cook Strait.4 Royal Forest and Bird Protection Society of New Zealand Inc v Minister of Fisheries [2021]NZHC 1427 [Judgment under appeal]. Gwyn J ordered that the 2019 decision would havecontinuing effect until the setting of the 2021 TAC but that, in making his decision on the 2021TAC, the Minister was to have regard to the findings contained in her judgment: at [218]–[219].Subsequently, the Judge stayed the requirement for the Minister to make a decision with effectfrom 1 October 2021 until the Minister had received, considered and consulted on an updatedEast Coast tarakihi assessment: Royal Forest and Bird Protection Society of New Zealand Inc vMinister of Fisheries [2021] NZHC 2282 at [96]; and Royal Forest and Bird Protection Society ofNew Zealand Inc v Minister of Fisheries [2021] NZHC 2468 at [9].High Court's judgment. Te Ohu Kai Moana Trustee Ltd (Te Ohu) supports the appeal.The Minister, while not seeking to uphold his original decision, cross-appeals on anarrow point of interpretation. As noted by Goddard J below at [159], the Minister'sinterpretation argument is not strictly speaking a cross-appeal, as the Minister does notcontend for a different outcome from that reached in the High Court. However, forease of reference we refer to it as such.[4] The appeal and cross-appeal raise questions not previously considered abouthow the TAC should be set under s 13(2)(b). The parties identified two broad issuesfor determination.Issue 1 — the approach to setting the TAC under s 13(2)(b)[5] The parties framed the first issue as: when varying the TAC under s 13(2) torebuild the East Coast stock whose current biomass is below that which can producethe MSY, was the Court in error in finding that the Minister:(a) must first assess the period of rebuild appropriate to the stock byreference only to the biological characteristics of the stock and anyenvironmental conditions affecting the stock and without consideringwhether the period could be lengthened due to the social, cultural andeconomic impact of catch reductions referred to in s 13(3);(b) must then separately consider the way in which and rate at which thestock is moved to a level that can produce MSY as a distinct step(without considering the period of the rebuild) and, significantly, thatsocial, cultural and economic factors in s 13(3) are only relevant to thissecond step; and(c) was not permitted to consider the IRP when determining the appropriateperiod under s 13(2)(b)(ii), as it was an irrelevant consideration underthat subparagraph?[6] It is common ground that the IRP falls within the description of social, culturaland economic factors.[7] Issue 1 can conveniently be reframed as asking whether the "appropriateperiod" within which the rebuild must occur under s 13(2)(b)(ii) is to be determinedseparately from the way in which and rate at which the rebuild occurs, and whethersocial, cultural and economic factors can be taken into account in determining the"appropriate period".Issue 2 — probability of rebuild[8] The second issue, which relates to the probability of any rebuild plan beingachieved, is framed differently by Fisheries Inshore, the Minister and Te Ohu, on theone hand, and Forest & Bird on the other.[9] Fisheries Inshore, the Minister and Te Ohu consider that the second issueshould be framed as: is the 70 per cent probability of rebuild, specified as the defaultprobability in the Operational Guidelines for the Harvest Strategy Standard (HSS) —a policy statement administered by the Ministry for Primary Industries | Manatū AhuMatua — a mandatory relevant consideration when the Minister decides to set a newTAC under s 13(2)(b)(ii)?5[10] Forest & Bird considers that the issue should be framed as:(a) Does the HSS specify a 70 per cent default probability of rebuild (andreasons for that default probability) that is relevant to rebuilding plansrelating to stocks below the "soft limit"?(b) Was the 70 per cent probability of rebuild and the reasons for thatprobability specified as the default probability in the OperationalGuidelines (and, if the answer to (a) is yes, the HSS) a mandatory5 See Ministry of Fisheries | Te Tautiaki i nga tini a Tangaroa Operational Guidelines forNew Zealand's Harvest Strategy Standard, Revision 1 (June 2011) [Operational Guidelines] (thiswas the version of the Operational Guidelines that was in place at the time of the 2018 and 2019decisions); and Ministry of Fisheries | Te Tautiaki i nga tini a Tangaroa Harvest Strategy Standardfor New Zealand Fisheries (October 2008) [HSS]. The Operational Guidelines and the HSS weredeveloped and introduced by the Ministry of Fisheries, but are now administered by FisheriesNew Zealand, a business unit of the Ministry for Primary Industries | Manatū Ahu Matua, after theformer Ministry was merged into the latter in 2012.relevant consideration when the Minister decided to set the TACs forEast Coast tarakihi in 2019?[11] For reasons we explain later, we intend to approach the second issue broadlyas proposed by Forest & Bird.The statutory frameworkThe purpose of the Fisheries Act[12] The Fisheries Act has the dual purposes of providing for the utilisation offisheries resources while ensuring sustainability.6 These concepts are both defined ins 8(2):(2) In this Act,—ensuring sustainability means—(a) maintaining the potential of fisheries resources to meet thereasonably foreseeable needs of future generations; and(b) avoiding, remedying, or mitigating any adverse effects offishing on the aquatic environmentutilisation means conserving, using, enhancing, and developingfisheries resources to enable people to provide for their social,economic, and cultural well-being.[13] In New Zealand Recreational Fishing Council Inc v Sanford Ltd(Supreme Court Kahawai case) the Supreme Court, referring to these "competingsocial policies", observed that:7[39] recognising the inherent unlikelihood of those making keyregulatory decisions under the Act being able to accommodate both policiesin full, s 8(1) requires that in the attribution of due weight to each policy that[the weight] given to utilisation must not be such as to jeopardisesustainability. Fisheries are to be utilised, but sustainability is to be ensured.[40] This ultimate priority is recognised in the two definitions. The firstconsideration in the definition of "utilisation" is the conserving of fisheriesresources. Their use, enhancement and development, to enable fishers toprovide for their social, economic and cultural wellbeing, are considerationswhich follow. The definition of "ensuring sustainability", on the other hand,6 Section 8(1).7 New Zealand Recreational Fishing Council Inc v Sanford Ltd [2009] NZSC 54, [2009] 3 NZLR438 [Supreme Court Kahawai case] at [39] and [40] (footnote omitted).reflects the policy of meeting foreseeable needs of future generations which isconcerned with future utilisation. These complementary definitions applywhenever those terms are used in the Act.Section 13 — setting the TAC[14] Part 3 of the Act contains "sustainability measures". The Minister is requiredto set a TAC for each stock managed under the QMS with the objective of maintainingthe stock at a level that can produce the MSY, defined as follows:8maximum sustainable yield, in relation to any stock, means the greatest yieldthat can be achieved over time while maintaining the stock's productivecapacity, having regard to the population dynamics of the stock and anyenvironmental factors that influence the stock.[15] A fish stock is measured in units of weight referred to as biomass (B), being(conventionally) the weight of the fish in the stock. Virgin biomass, or B0, is used torepresent the theoretical size of the stock without fishing. The stock size that producesthe fastest population growth that can be fished while maintaining that growth isknown as BMSY. The biomass that can produce MSY is referred to as BMSY.The biomass reflects a variety of factors, including food resources and the stock's ownpopulation dynamics. Population growth will be highest when fish numbers areabundant and food resources plentiful. This does not necessarily occur when there isno fishing because a large population competing for limited food will have poorreproductive performance. However, when a stock has become depleted, a reductionin fishing may be needed to allow the stock to recover to that level.[16] Section 13 relevantly provides:13 Total allowable catch(1) Subject to this section, the Minister shall, by notice in the Gazette, setin respect of the quota management area relating to each quotamanagement stock a total allowable catch for that stock, and that totalallowable catch shall continue to apply in each fishing year for thatstock unless varied under this section, or until an alteration of the quotamanagement area for that stock takes effect in accordance withsections 25 and 26.(2) The Minister shall set a total allowable catch that—8 Fisheries Act 1996, s 2 definition of "maximum sustainable yield".(a) maintains the stock at or above a level that can produce themaximum sustainable yield, having regard to theinterdependence of stocks; or(b) enables the level of any stock whose current level is belowthat which can produce the maximum sustainable yield to bealtered—(i) in a way and at a rate that will result in the stock beingrestored to or above a level that can produce themaximum sustainable yield, having regard to theinterdependence of stocks; and(ii) within a period appropriate to the stock, having regardto the biological characteristics of the stock and anyenvironmental conditions affecting the stock; or(c) enables the level of any stock whose current level is above thatwhich can produce the maximum sustainable yield to bealtered in a way and at a rate that will result in the stockmoving towards or above a level that can produce themaximum sustainable yield, having regard to theinterdependence of stocks.(2A) For the purposes of setting a total allowable catch under this section,if the Minister considers that the current level of the stock or the levelof the stock that can produce the maximum sustainable yield is notable to be estimated reliably using the best available information, theMinister must—(a) not use the absence of, or any uncertainty in, that informationas a reason for postponing or failing to set a total allowablecatch for the stock; and(b) have regard to the interdependence of stocks, the biologicalcharacteristics of the stock, and any environmental conditionsaffecting the stock; and(c) set a total allowable catch—(i) using the best available information; and(ii) that is not inconsistent with the objective ofmaintaining the stock at or above, or moving the stocktowards or above, a level that can produce themaximum sustainable yield.(3) In considering the way in which and rate at which a stock is movedtowards or above a level that can produce maximum sustainable yieldunder subsection (2)(b) or (c), or (2A) (if applicable), the Ministershall have regard to such social, cultural, and economic factors as heor she considers relevant.(4) The Minister may from time to time, by notice in the Gazette, vary anytotal allowable catch set for any quota management stock under thissection by increasing or reducing the total allowable catch. Whenconsidering any variation, the Minister is to have regard to the mattersspecified in subsections (2), (2A) (if applicable), and (3).The legislative history of s 13(2)(b) and (3)[17] Fisheries Inshore and Te Ohu both maintain that social, cultural and economicfactors are relevant to determining the "period appropriate to the stock" unders 13(2)(b)(ii). However, a review of the legislative history of s 13(2)(b) and (3) showsthe progressive separation of social, cultural and economic factors from scientificfactors in the setting of TACs, in order to ensure sustainability.[18] In defining MSY, New Zealand legislation initially drew on the United NationsConvention on the Law of the Sea (UNCLOS).9 Relevantly, art 61 provides for coastalstates to determine the allowable catch of living resources in their exclusive economiczones, with art 61(3) providing that:Such measures shall also be designed to maintain or restore populations ofharvested species at levels which can produce the maximum sustainable yield,as qualified by relevant environmental and economic factors, including theeconomic needs of coastal fishing communities and the special requirementsof developing States, and taking into account fishing patterns, theinterdependence of stocks and any generally recommended internationalminimum standards, whether subregional, regional or global.[19] This breadth of relevant considerations in determining the MSY waspreviously reflected in the Territorial Sea and Exclusive Economic Zone Act 1977,where TAC was defined as meaning:10"Total allowable catch", with respect to the yield from any fishery, means theamount of fish that will produce from that fishery the maximum sustainableyield, as qualified by any relevant economic or environmental factors, fishingpatterns, the interdependence of stocks of fish, and any generallyrecommended subregional, regional or global standards.9 United Nations Convention on the Law of the Sea 1833 UNTS 3 (opened for signature10 December 1982, entered into force 16 November 1994).10 Section 2(1) definition of "total allowable catch". This Act is now called the Territorial Sea,Contiguous Zone, and Exclusive Economic Zone Act 1977, following the Territorial Sea andExclusive Economic Zone Amendment Act 1996. It no longer defines or references totalallowable catch.[20] The Fisheries Act 1983, which provided for fishery management plans thatcould, among other things, set a TAC, defined that as:11total allowable catch, with respect to the yield from a fishery, means theamount of fish, aquatic life, or seaweed that will produce from that fishery themaximum sustainable yield, as qualified by any relevant economic orenvironmental factors, fishing patterns, the interdependence of stocks of fish,and any generally recommended sub-regional or regional or global standards.[21] Under the Fisheries Amendment Act 1986, which introduced the quotamanagement system, the definition of TAC remained the same. In theFisheries Amendment Act 1990, provision was made for the Minister to set a TACC,after having regard to the TAC and allowing for (among other things) "Maori,traditional, recreational and other non-commercial interests in the fishery".12[22] On its introduction, the Fisheries Bill 1994, which preceded the currentFisheries Act 1996, provided for the setting of a TAC on terms that included the "netnational benefit" as a relevant consideration in determining the "period appropriate tothe stock".13 Net national benefit was defined as "the sum of all costs and benefits ofany kind, both monetary and non-monetary".14 The Fisheries Bill permitted a TAC tobe set below a level that would produce the MSY, after consideration of the net nationalbenefit, risks to the sustainability of the stock and adverse effects on the environment.The relevant provisions were cl 11(2)(c) and (3):(2) Except as provided in subsection (3) of this section, the Minister shallspecify a total allowable catch that, on the balance of the evidencebefore the Minister,—(c) Enables the stock to be altered in a way and at a rate that willresult in the stock being maintained at a level at or above thelevel that can produce the maximum sustainable yield within aperiod appropriate to the stock, having regard to the stockcharacteristics, the net national benefit, and theinterdependence of stocks.(3) The Minister may specify a total allowable catch that is consistentwith a stock level below the level that produces the maximumsustainable yield if—11 Section 2(1) definition of "total allowable catch".12 Section 5(1), which inserted s 28D(1)(a) into the Fisheries Act 1983.13 Fisheries Bill 1994 (63-1), cl 11(2)(c) and (3)(a).14 Clause 2(1) definition of "net national benefit".(a) The Minister is satisfied that such a total allowable catch willprovide a greater net national benefit than would be achievedby a total allowable catch specified in accordance withsubsection (2) of this section, having regard to theinterdependence of stocks; and(b) The Minister has considered the risks to the sustainability ofthe stock and adverse effects on the environment.[23] The concept of net national benefit was abandoned at the Select Committeestage (and with it the possibility of managing stock at a level below MSY).The Primary Production Select Committee produced an interim report which attachedproposed amendments to the Bill.15 The proposed amendment removed the referenceto "net national benefit", and the new provision, cl 13(2)(b), read:16(2) The Minister shall set a total allowable catch that—(b) Enables the level of the stock to be altered in a way and at a rate thatwill result in the stock being restored to a level at or above a level thatcan produce the maximum sustainable yield, having regard to theinterdependence of stocks and within a period appropriate to the stockhaving regard to the stock characteristics; or[24] The Committee subsequently released its final report with further revisions,including the splitting of cl 13(2)(b) into two limbs and proposed amendments tocl 13(2)(b) altering the matters to be taken into account in setting the TAC.17 It alsoadded a new sub-cl 13(3). The new cl 13 provided:18(2) The Minister shall set a total allowable catch that—(b) Enables the level of any stock whose current level is below that whichcan produce maximum sustainable yield to be altered—(i) in a way and at a rate that will result in the stock beingrestored to or above a level that can produce the maximumsustainable yield, having regard to the interdependence of15 Primary Production Select Committee Interim Report on the Fisheries Bill: Report of the PrimaryProduction Committee [1993–1996] I AJHR 11A.16 At 36.17 Fisheries Bill 1996 (63-2) (select committee report) at x–xi.18 Fisheries Bill 1996 (63-2) (emphasis added).stocks and any environmental conditions affecting the stock;and(ii) within a period appropriate to the stock and its biologicalcharacteristics; or(3) In considering the way in which and rate at which a stock is movedtowards or above a level that can produce maximum sustainable yieldunder paragraph (b) or paragraph (c) of subsection (2) of this section,the Minister shall have regard to such social, cultural and economicfactors as he or she considers relevant.[25] In its report the Committee explained that the concept of net national benefithad been removed and it recommended sub-cl 13(3) be included to ensure thatsustainability would be the key concern in setting the TAC:19The TAC setting provision in the Bill, as introduced, allowed the Minister toset a TAC at a point below the level that produces the MSY if doing so wouldprovide a greater net national benefit. There was concern fromenvironmentalists and the Parliamentary Commissioner for the Environmentthat this provision could result in unsustainable catch limits being set.These submissioners wanted all references to the net national benefit deleted.Industry submissioners were strongly supportive of the ability of the Ministerto set a TAC below MSY if doing so was in the net national benefit.The [Fishing Industry Board] argued that, to be consistent with internationallaw, the Bill needed to provide for economic factors to be taken into accountwhen setting a TAC. Article 61 of UNCLOS specifies that relevant economicfactors should be taken into account when setting constraints on commercialfishing activity.We accept that the Bill needs to be consistent with New Zealand'sinternational obligations. However, we are convinced that "net nationalbenefit" is a vague term which would be difficult to measure and recommendthat it be deleted. We strongly believe that sustainability concerns should bethe key factor used to determine a TAC. We recommend subclause 13 (3)which requires the Minister to have regard to such social, cultural andeconomic factors as are considered relevant when considering the way in, andrate at which, a stock is moved towards its sustainable level. This is consistentwith UNCLOS, does not detract from the philosophy that setting a TAC shouldbe primarily based on sustainability concerns, and recognises recentmanagement practice.[26] The Fisheries Act was introduced in 1996 in the revised form. Soon after,however, s 13 was amended to its current form, with consideration of "anyenvironmental factors affecting the stock" moved from s 13(2)(b)(i) to s 13(2)(b)(ii).2019 Fisheries Bill 1996 (63-2) (select committee report) at xi (emphasis added).20 Fisheries (Remedial Issues) Amendment Act 1998, s 4(2).The explanatory note to the Bill which made that amendment stated that the referenceto environmental factors was to be moved from subpara (i) to (ii) because the effectsof changing environmental factors could be relevant in considering the rate at whicha stock size would change.21[27] In the Supreme Court Kahawai case (which was concerned with the setting ofthe TACC under s 21) the Supreme Court described the operation of s 13 in thefollowing terms:22[42] Section 13 provides the mechanism by which the Minister sets thetotal allowable catch for each species subject to quota management in a quotamanagement area. The power is to be exercised subject to the variousconsiderations expressed in the section.[43] The guiding criterion in s 13 is sustainability. It is expressed in termsof attaining a maximum sustainable yield for setting a total allowable catchfor that stock in the quota management area. The determination of the totalallowable catch is a "sustainability measure" under the Act, being a measureset or varied under Part 3 for the purpose of ensuring sustainability. The powerto set or vary sustainability measures may be exercised after taking intoaccount the effects of fishing on the stock, applicable catches and notionalvolatility of the stock. In broad terms the Minister is required by s 13 to set atotal allowable catch at a figure which maintains the stock at or above a levelwhich can produce the maximum sustainable yield. When the current level ofstock is below that which can produce the maximum sustainable yield,the Minister must set the total allowable catch at a level that enables the stockto move towards or above the level that can produce the maximum sustainableyield. [44] While sustainability is the guiding criterion, the Minister has someflexibility under s 13 to consider aspirations of the fishing sectors forutilisation of the resource. In considering the way in which, and rate at which,a stock is moved towards or above a level producing a maximum sustainableyield, the Minister must have regard to "social, cultural, and economic factorsas he or she considers relevant". This imports into the process for setting thetotal allowable catch a key aspect of the definition of "utilisation" in s 8(2).The Harvest Strategy Standard[28] The HSS, issued in 2008, assists in decision-making under s 13. The HSS is astatement of how the Ministry for Primary Industries | Manatū Ahu Matua (theMinistry) intends to give effect to its obligations under the Act and functions as atechnical standard to be used by the Ministry when advising the Minister on setting21 Fisheries (Remedial Issues) Amendment Bill 1997 (97-1) (explanatory note) at ii.22 Supreme Court Kahawai case, above n 7 (footnotes omitted).TACs and managing fisheries in accordance with the Minister's decision.23 In relationto its scope, it states:24The Harvest Strategy Standard is a key input to the setting of TACs under theFisheries Act.However, the Harvest Strategy Standard is not the only input into the settingof TACs. The Harvest Strategy Standard is concerned with the application ofbest practice in relation to the setting of fishery and stock targets and limits,but it is focussed on single species biological considerations and relateduncertainties, and includes only limited consideration of economic, social,cultural or ecosystem issues.[29] In relation to s 13(2)(b) the HSS states:25The Harvest Strategy Standard assists in decision-making under this sectionby providing that depleted stocks should be rebuilt back to a target based onMSY-compatible reference points or better, and ensuring that the specified rateof rebuilding takes due account of relevant biological and environmentalfactors. In section 13(3), it is also stated that when deciding on the way andrate at which a stock is rebuilt "the Minister shall have regard to such social,cultural, and economic factors as he or she considers relevant". The HarvestStrategy Standard allows rebuilding plans to take these factors into account byenabling the adoption of targets "better than" MSY-compatible referencepoints, and permitting flexible rebuilding timeframes.[30] The HSS has three core elements:26(a) A specified target about which a fishery or stock should fluctuate.For stocks managed under s 13, the target is based on MSY-compatiblereference points or better, with a 50 per cent probability of achievingthe target.(b) A "soft limit" that triggers a requirement for a formal, time constrainedrebuilding plan if the existing stock falls below that level. A stock thatis below the soft limit will be designated as depleted (overfished) andin need of rebuilding.23 HSS, above n 5, at 22.24 At 3.25 At 23 (footnote omitted).26 At 7.(c) A "hard limit", below which fisheries should be considered for closure.The hard limit will be considered to have been breached when theprobability that stock biomass is below the hard limit is greater than50 per cent. A fishery that is determined to be below the hard limit willbe designated as collapsed.[31] The stock assessments that preceded the 2018 and 2019 TACs showed that theEast Coast tarakihi stock had likely fallen below the soft limit. The HSS provides thatstocks that have fallen below the soft limit should be rebuilt back to at least the targetlevel in a specified time frame. This time frame is expressed as being between Tminand 2*Tmin where 2*Tmin is Tmin doubled, with "an acceptable probability".27 Tmin isthe theoretical time stock would take to rebuild to the target in the absence of fishing.It is a function of the biology of the species, the extent of stock depletion below thetarget and prevailing environmental conditions.28[32] Whether the "acceptable probability" of the rebuild being achieved is actuallyspecified in the HSS is a question that Forest & Bird says ought to be considered underIssue 2. Fisheries Inshore says that it is not specified and that, in any event, Forest &Bird did not raise the issue on its pleading and therefore cannot raise it now. We cometo these competing arguments later.The Operational Guidelines[33] The Operational Guidelines, also introduced in 2008 and revised in 2011,support the implementation of the HSS.29 They do not have the same status asthe HSS.[34] In relation to the time frames for rebuilding, the Operational Guidelinesprovide:30The Harvest Strategy Standard specifies that where the probability that a stockis at or below the soft limit is greater than 50%, the stock should be rebuilt tothe target within a time period between Tmin and 2*Tmin (where Tmin is the27 At 8.28 At 8, n 7.29 Operational Guidelines, above n 5.30 At 11–12 (emphasis added).theoretical number of years required to rebuild a stock to the target with zerofishing mortality).Mathematical projection models will generally need to be developed toestimate Tmin and to compare and contrast alternative rebuilding strategies.These will usually be probabilistic models that incorporate uncertainty in theprojections. The minimum standard for a rebuilding plan is that 70% of theprojected trajectories will result in the achievement of a target based onMSY-compatible reference points or better within the timeframe of Tmin to2*Tmin. This equates to a probability of 70% that the stock will be above thetarget level at the end of the timeframe. A stock will not be declared to berebuilt, and therefore absolved from further rebuilding, until it can bedetermined that there is at least a 70% probability that the target has beenachieved. This means that if the initial rebuilding plan isunderachieved/overachieved, it may need to be revised prior to the terminationof the timeframe initially set. This may result in a more restrictive, or morelenient, rebuilding plan as time progresses.Tmin reflects the extent to which a stock has fallen below the target, thebiological characteristics of the stock that limit the rate of rebuild, and theprevailing environmental conditions that also limit the rate of rebuilding.Allowing a rebuilding period up to twice Tmin allows for some element ofsocio-economic considerations when complete closure of a fishery couldcreate undue hardships for various fishing sectors and/or when the stock is anunavoidable bycatch of another fishery. The probability of rebuild should beincreased where the information is highly uncertain or where multiple sectorshave significant interests in the fishery.The 2018 decision[35] Stock assessments of East Coast tarakihi undertaken in November 2017 andApril 2018 indicated that the stock had fallen below the soft limit. It was commonground that the Tmin was five years. Under the HSS the appropriate time frame forrebuilding the stock was therefore between five and 10 years.[36] In 2018 Fisheries New Zealand advised the Minister on the options availableto address the sustainability of the East Coast tarakihi stock. These were:(a) reduce TAC by 55 per cent with a projected rebuild period of 10 years;(b) reduce TAC by 35 per cent with a projected rebuild period of 20 years;or(c) reduce TAC by 20 per cent, the rebuild period for which was not (or notable to be) determined.[37] On 19 September 2018 the Minister decided on a phased approach, involvingan initial reduction of the TACC of 20 per cent as the start of the process of rebuilding.The Minister specifically acknowledged that this reduction would not rebuild the stockat the rate he wished without significant further measures but would give the industrya short period to plan and adjust its operations. Specifically, the target set bythe Minister was based on a 50 per cent probability of achievement within a rebuildperiod of 10 years.[38] The Minister asked the industry to provide a plan that would be consideredalongside a proposed catch reduction in the 2019 year, noting that the size of thereduction in the commercial catch that would be implemented in October 2019 woulddepend on the effectiveness of the measures the industry could develop as part ofthe plan.The 2019 decision[39] The updated stock assessment in April 2019 showed a very high probability ofthe stock being below the soft limit.[40] In May 2019 Fisheries Inshore, Te Ohu and another industry group,Southern Inshore Fisheries Management Ltd, produced the IRP, which contained arange of management steps for East Coast tarakihi. The IRP included agreement tokey performance indicators, reporting requirements and the use of onboard cameras insome areas. The industry also committed to a maximum rebuild time of 20 years.[41] With the benefit of the IRP, Fisheries New Zealand produced a discussionpaper identifying three options. Following consultation with both the industry bodiesand Forest & Bird, Fisheries New Zealand provided its final advice paper withfour options:(a) Option 1: TACC reduction of 31 per cent shared unevenly acrossEast Coast tarakihi with a 50 per cent probability of achieving the targetwithin 12 years; or(b) Option 2: TACC reduction of 35 per cent with a 50 per cent probabilityof achieving the target within 11 years; or(c) Option 3: implementation of the IRP with no TAC or TACC reductions,with the aim of achieving a lesser target within 20 years.31No probability was determined; or(d) Option 4: TACC reduction of 10 per cent, combined with the IRP, withthe aim of achieving the target within 20 years. There was uncertaintyabout the rebuild period.32[42] Fisheries New Zealand advised that it preferred either option 2 or option 4,depending on the priority — whether it was to rebuild stock as quickly as possible ina time frame that most closely corresponded to the HSS or to rebuild stock in atime frame that minimised the socio-economic impacts on fishers, their families andregional communities.[43] The Minister's decision, released on 27 September 2019, substantially adoptedoption 4. The Minister reduced the TACC by a further 10 per cent, implementedthe IRP and required electronic monitoring on vessels fishing within TAR 2 and TAR 3areas from 2020. Explaining his decision, the Minister said:The [IRP] also commits to a maximum rebuild timeframe of 20 years.There is however, uncertainty as to the extent to which the measures outlinedin the [IRP] will be successful in delivering a 20 year rebuild. To provide mewith a greater level of certainty this will be achieved, I have decided tocombine the [IRP] with a 10% reduction to commercial catch.If industry fails to deliver on the commitments outlined in the [IRP] I will lookto introduce further catch reductions in October next year. 31 This 20-year period was taken from industry groups' commitment to a maximum 20-year rebuildtime frame. The paper noted that in the absence of the IRP, the rebuild time frame would be27 years.32 Modelling for the TACC reduction alone, without the IRP plan, showed a 50 per cent probabilitythat the target would be achieved in 25 years and that it would take more than 30 years to reachthe target with a 70 per cent probability.Abundance of East Coast tarakihi is currently very low, with the most recentstock assessment estimating it to be 15.9% SB0 (spawning stock biomass).The assessment also indicates that the stock has been near the current levelsince the early 2000s, and has declined slowly since the mid-1970s to a lowpoint in 2013. This is significantly below the proxy management target of40% SB0, as recommended by the [HSS]. It is also below the level thatrequires a time constrained rebuild plan. I consider that further work isrequired before a different species specific management target for tarakihi canbe set, and therefore consider 40% SB0 to be an appropriate target at this time.While my decisions last year will have begun the process of rebuilding thestock, I indicated at that time that those actions were unlikely to rebuild thestock at the rate I wanted. Consequently, I consider it necessary to take furtheraction this year to provide confidence that the stock will rebuild in a way andat a rate that I consider appropriate. My decision reflects my understandingof the economic impact on fishers, their families and the regional communitieswhere they operate, balanced against my responsibility to ensure thesustainability of this fishery.[44] In his affidavit filed in the proceeding the Minister said of the 2019 decision:41. I was conscious that a TACC reduction of 35% was most aligned withthe ten year period of rebuild, which I preferred in the previous year,and guidance provided by the HSS.42. Nonetheless, I had an obligation to balance the potentialsocio-economic impacts of my decisions against my responsibility toensure the sustainability of East Coast tarakihi. I was concerned thatthe recommended ten year rebuild may have particularly significantsocio-economic implications for this fishery.[45] The Minister went on to note that he had agreed to the implementation ofthe IRP for the following reasons:3346. The science advice indicated the further TAC and TACC reductionsin 2019 (alone) would have a 50% probability of rebuilding East Coasttarakihi within 25 years. However, in addition to the TAC and TACCcuts the [IRP] commits to a maximum rebuild timeframe of 20 years.Although this is a longer time period than I favoured in 2018, and adeparture from the HSS, I concluded that by working in partnershipwith key industry participants, and acknowledging the innovativemeasures the government had either introduced, or was seeking tointroduce, this time frame was likely to be a 'worst case scenario'.I also concluded that a genuine 'mood for change' had occurred withinthe industry and the vast majority of participants sought to proactivelyadopt, and in many cases, fast-track, technologies and fishingpractices that would, in my mind at least, ensure continuity ofemployment and fishery rebuild.33 Footnotes omitted.Issue 1: Is the "appropriate period" within which the rebuild must occur unders 13(2)(b)(ii) to be determined separately from the "way and rate" of rebuildunder s 13(2)(b)(i), and can social, cultural and economic factors be taken intoaccount in determining the "appropriate period"?The High Court decision[46] It will be recalled that s 13(2)(b) requires the Minister to set a TAC that enablesthe level of any stock whose current level is below that which can produce the MSYto be altered:(i) in a way and at a rate that will result in the stock being restoredto or above a level that can produce the maximum sustainableyield, having regard to the interdependence of stocks; and(ii) within a period appropriate to the stock, having regard to thebiological characteristics of the stock and any environmentalconditions affecting the stock And that s 13(3) provides:In considering the way in which and rate at which a stock is moved towardsor above a level that can produce maximum sustainable yield under subsection(2)(b) or (c), or 2A (if applicable), the Minister shall have regard to suchsocial, cultural, and economic factors as he or she considers relevant.[47] Fisheries Inshore argued that the "way", "rate" and "period" in s 13(2)(b)(i)and (ii) inform one another, so that all the factors in s 13(2)(b) must be consideredtogether. Further, the social, cultural, and economic impacts of setting a TAC referredto in s 13(3) are relevant to both the "way" and "rate" and the "period".[48] Gwyn J did not accept either argument. She considered that the enquiriesrequired by s 13(2)(b)(i) and (ii) had to be considered separately, and that, logically,the appropriate rebuild period under s 13(2)(b)(ii) must be determined first:34[71] Section 13 is not drafted as clearly as it might be. Although thereference to a "period appropriate to the stock" in subs (2)(b)(ii) occurs afterthe reference to "way" and "rate" in subs (2)(b)(i), logically the periodappropriate must be determined first; because "way" must mean measuresdesigned to implement the target, and "rate" the speed at which the target isachieved within the designated "appropriate" period.34 Judgment under appeal, above n 4.[49] The Judge also considered that the determination of the "appropriate period"within which the rebuild had to occur was to be carried out without reference to social,cultural, and economic factors. Those factors were relevant only to determining theway and rate of the rebuild, which were assessed separately under s 13(2)(b)(i):[72] Further, while subs (3) refers to "subsection (2)(b) or (c)", therequirement that the Minister have regard to such social, cultural andeconomic factors as he or she considers relevant is specifically linked to thephrase "in considering the way in which and rate at which" a stock is movedtowards MSY. That echoes the words of subs (2)(b)(i). As a matter ofconstruction, logically subs (3) applies to (2)(b)(i) and not to (2)(b)(ii); it doesnot enable the Minister to postpone the stock's return to sustainability inreliance on social, cultural or economic considerations.[73] That interpretation is consistent with the purpose of the Act to providefor the utilisation of fisheries resources while ensuring sustainability. [81] I agree with Forest & Bird that the legislative history indicates thatthe factors relevant to determining the "period appropriate to the stock" arethose contained in s 13(2)(b)(ii) (being the biological characteristics of thestock and any environmental conditions affecting the stock), and the draftingchange was not intended to make social, cultural and economic factorsrelevant considerations under s 13(2)(b)(ii).[50] The Judge concluded that:[92] the "period appropriate to the stock" in s 13(2)(b)(ii) of the Act isto be determined by the Minister based on technical advice concerning thestock's biological characteristics and environmental conditions. Perpetuallymaintaining a stock below MSY (which would be permissible if s 13(2)(b)(ii)is qualified by economic considerations) is not a tenable interpretation.The specific words of s 13(2)(b)(ii) are determinative – the Minister wasrequired to alter the stock levels within a period appropriate to the stock,having regard to the biological characteristics of the stock and anyenvironmental conditions affecting the stock, without reference to social,cultural and economic factors.[93] Social, cultural and economic factors come into play only afterthe Minister has decided on "the period appropriate to the stock", when he orshe comes to determine the way in which and the rate at which a stock ismoved towards a level that can produce MSY.[51] The Judge considered that the sequence of the Minister's decision-making hadnot been clearly set out in either the advice paper or the Minister's 2019 decision.35In particular, the "period appropriate to the stock" had not been separately and35 At [98].specifically considered.36 Nor was there any explanation why the "period appropriateto the stock" had changed from 10 years in 2018 to 20 years in 2019.37 The Minister'saffidavit had not clarified that point.38 The Judge therefore concluded that the Ministerhad erred in not making an assessment of the period of rebuild appropriate to theEast Coast tarakihi stock as required by s 13(2)(b)(ii) before applying social, culturaland economic factors to the determination of way and rate of rebuild.39Fisheries Inshore's argument[52] Fisheries Inshore maintains the same arguments it advanced in the High Court:s 13(2)(b)(i) and (ii) are to be read together "in the round" rather than determinedseparately and in a different order to that provided for. Fisheries Inshore asserts thatsocial, cultural, and economic factors are to be taken into account in the compositeenquiry and the Judge erroneously inverted the subparagraphs and wrongly treatedthem as discrete. The arguments advanced on behalf of Fisheries Inshore can besummarised as follows.[53] First, only s 13(2)(b)(i) contains the target to be achieved by rebuilding thestock (that is, the stock being restored to or above a level that can preserve the MSY).As a result, the question of the appropriate period in s 13(2)(b)(ii) is inextricably linkedto the way and rate at which the stock would be restored. They inform each other,have consequences for each other and must be considered together in order to reachthe target of restoring the stock to its MSY.[54] Secondly, the conjunction of (i) and (ii) indicates that the required analysis wascomposite rather than sequential. Mr Scott, for Fisheries Inshore, pointed out that theFisheries Bill 1994, in which the concepts of altering a stock "in a way and at a rate"and "within a period appropriate to the stock" first appeared, had both requirementssituated in the same subparagraph. Their separation into two subparagraphs by thePrimary Production Select Committee in its final report on the Fisheries Bill reflected36 At [98].37 At [101].38 At [104].39 At [109].common drafting practice, to ensure that each requirement would be considered. It didnot indicate that each should be considered in isolation from one another.[55] Thirdly, properly interpreted, s 13(2)(b)(ii) permits factors other than thebiological characteristics of the stock and environmental conditions affecting the stock— specifically, the factors provided for in 13(3) — to be taken into account indetermining the "period appropriate to the stock" within which the rebuild must occur.Additionally, on a proper interpretation, s 13(3) applies to both s 13(2)(b)(i) and (ii).[56] Fourthly, a rebuild period determined only by the biological characteristics ofthe stock and the environmental conditions affecting the stock is already reflected inthe Tmin calculation under the HSS, which gives the theoretical time required to rebuildthe stock in the absence of any fishing. If any degree of utilisation is to be permitted(which it must) a value judgement is needed, which necessarily engages widerquestions.[57] Fifthly, the fact that s 13(2)(b)(ii) refers to "stock" necessarily reflects the factthat any given fish stock has some aspect of utilisation — often by groups withdiffering ambitions — which requires recognition in determining the appropriateperiod for the purposes of s 13(2)(b). We deal with this argument briefly now."Stock" is defined as "any fish, aquatic life, or seaweed that are treated as a unitfor the purposes of fisheries management".40 The defined meaning relates clearly tothe fish alone. There is no reason to think that it has an extended meaning in thecontext of s 13(2)(b)(ii).The Minister's argument[58] The Minister accepts that there was not, on the record, an adequate assessmentof the period appropriate to the stock under s 13(2)(b)(ii) and does not seek to upholdthe original decision. He has, however, cross-appealed on an aspect relating to howthe appropriate period under s 13(2)(b)(ii) is identified.40 Fisheries Act, s 2(1) definition of "stock".[59] The Minister accepts that the period appropriate to the stock that is selected forthe purposes of s 13(2)(b)(ii) is to be determined by reference to the scientific factorsidentified in s 13(2)(b)(ii) only, without reference to social, cultural and economicfactors. To that extent his position is consistent with Forest & Bird. However,the Minister and Forest & Bird diverge on the next step of the Minister's argument.[60] The Minister says that the Judge wrongly interpreted s 13(2)(b)(ii) as requiringthe selection of a specific number of years as the appropriate period and that, althoughthe Fisheries Act does not require him to rebuild a depleted stock as quickly aspossible, nor to adopt a precautionary rebuild period, the Judge's approach of requiringthe appropriate period to be determined separately from the way and rate of rebuild,and only by reference to scientific factors, could have that effect.[61] The Minister argues that the words "a period appropriate to the stock"contemplates the possibility of a range of periods, up to a maximum period, that maybe regarded as appropriate to the stock.41 These would be identified through anevaluation of the benefits and risks to the stock associated with particular periods ofrebuild and the exercise of judgement. The Minister asserts that he is entitled to selecta rebuild target within the range and, in doing so, may take account of social, culturaland economic considerations. On the Minister's approach, the appropriate periodcould be determined first or used as a cross-check against the potential target rebuildperiods but, either way, the key question is whether the selected target can properly besupported in light of the scientific factors.A preliminary point[62] Before considering these arguments we address Mr Scott's suggestion thatthe Judge had proceeded under the misapprehension that allowing social, cultural andeconomic factors to be taken into account when determining an appropriate periodwould improperly postpone the return to BMSY or perpetually maintain the stock belowthat level.42 He submitted that this would not be the effect of an "in the round"41 In addressing the basis on which the maximum period might be determined, the Minister employedthe concept of Tmax, drawn from the approach taken in Canada and Australia. This concept is notreferred to in the HSS, nor the Operational Guidelines, and for that reason we prefer not to use it.42 Referring to Judgment under appeal, above n 4, at [72] and [92].interpretation of s 13(2)(b) because the scheme of s 13 necessarily involves apostponement of returning a fishery to BMSY — as soon as any catch is permittedduring the rebuild period that will necessarily be the result. However, it is permittedwhere the fishery can sustainably accommodate the continued catch, which reflectsthe dual purpose of utilisation while ensuring sustainability. He pointed out that noneof the respondents had advocated for an interpretation that allowed the stock to beperpetually maintained below BMSY and observed that, in any event, the statements ofthis Court in New Zealand Fishing Industry Association (Inc) v Minister of Fisheries(the Snapper case) would have precluded such a suggestion.43[63] We do not read the Judge's comments as indicating any misunderstanding ofthe appellants' arguments. Rather, we read them as indicating a concern that theinterpretation contended for could have the consequence of indefinitely postponingthe return to BMSY. Because s 13(2)(b)(i) requires any alteration to the TAC to havethe effect of restoring the stock to BMSY, it is not open to the Minister to set a TAC thatcannot be shown to have that effect. However, although the Minister cannot postponereturn to BMSY indefinitely in a literal sense, that could be the consequence in apractical sense because Fisheries Inshore's approach could result in an excessivelylong rebuild period that would meet the statutory requirement so long as it moved thestock towards BMSY, no matter how slowly. We infer that this was the concern beingexpressed by the Judge.Our view[64] We agree that it is not possible to read s 13(2)(b)(ii) in isolation froms 13(2)(b)(i). Doing so would require the Minister to simply alter the TAC "within aperiod appropriate to the stock", without any objective. These subparagraphs areobviously conjunctive and meant to work together. That does not mean, however, thata single composite enquiry is envisaged. The separation of cl 13(2)(b) intosubparagraphs by the Select Committee may have been down to drafting practice (it isnot explained in the Committee's report) but the removal of non-scientificconsiderations from cl 13(2)(b) into the new sub-cl 13(3) gives a clear indication —43 Referring to New Zealand Fishing Industry Association (Inc) v Minister of Fisheries CA82/97,22 July 1997 [Snapper case] at 14.even without the Committee's explanation — of how the TAC was intended to be set.The explanation contained in the final report makes it clear beyond doubt that theoverarching concern was sustainability. The precedence of sustainability overutilisation would not be achieved through a single composite decision. This isapparent from the observation in the Supreme Court Kahawai case of the "inherentunlikelihood" of decision-makers being able to fully accommodate both policies.44[65] Section 13(2)(b) requires the Minister to set a TAC that enables the level ofstock to be altered in a way and at a rate that will result in it being restored to MSY orabove, and does so within a period appropriate to the stock. Although s 13(2)(b)(i)does not refer to a rebuild period, the selection of a way in which and rate at whichrebuild will occur will necessarily produce a rebuild period as a function of permittingfishing on those terms. However, it is clear from the text that s 13(2)(b)(ii) operatesas a control on that rebuild period. It can only fulfil that function if it is determinedseparately. This is because, as we come to next, the factors that can be taken intoaccount in determining the way and rate of the rebuild include social, cultural andeconomic factors, whereas the factors that can be taken into account in determiningthe period within which the rebuild is to occur are the more limited "scientific" factors,and will most likely produce a shorter rebuild period.[66] Mr Scott argued that, properly interpreted, the wording of s 13(2)(b)(ii)requiring the TAC to be altered within a period appropriate to the stock "having regardto" the biological characteristics of the stock and any environmental conditionsaffecting the stock does not preclude other factors (specifically social, cultural andeconomic factors) from being taken into account. He relied for this argument onPacific Trawling Ltd v Minister of Fisheries, where Priestley J said that "[w]here thereis a mandatory obligation to 'have regard' to something the matter must be considered,but it does not necessarily determine or influence the decision."45 Mr Scott submittedthat the Judge had erred in not applying the test in Pacific Trawling or explaining whyit did not apply.44 Supreme Court Kahawai case, above n 7, at [39].45 Pacific Trawling Ltd v Minister of Fisheries HC Napier CIV 2007-441-1016, 29 August 2008 at[83], citing Sanford Ltd v New Zealand Recreational Fishing Council Inc [2008] NZCA 160[Court of Appeal Kahawai case] at [94]; and New Zealand Fishing Industry Association v Ministerof Agriculture and Fisheries [1988] 1 NZLR 544 (CA) at 551.[67] Neither Pacific Trawling nor the cases cited in it have the effect contended for.The relevant provision in Pacific Trawling expressly allowed the Minister to consider"any other matters" that the Minister considered relevant.46 Nor is Sanford Ltd vNew Zealand Recreational Fishing Council Inc (Court of Appeal Kahawai case) apt,because the question being considered was whether the requirement to "have regard"to a matter imposed any greater obligation than to merely consider it.47 The Court wasnot concerned with whether other, unspecified, factors might be considered.[68] In any event, while the requirement for a decision-maker to "hav[e] regard to"specified factors is generally treated as requiring only that those factors be considered,rather than given effect to, this is not the meaning intended in the context ofs 13(2)(b)(ii). The words "having regard to" do not indicate factors that the Ministermay or may not treat as influential in the decision. They are, rather, a statement of thecriteria to be taken into account in determining an appropriate period within which therebuild must occur. If the Minister were entitled to merely consider but not act onthose factors, there would be no clear criteria by which to make that assessment.[69] Mr Scott also argued that the High Court's interpretation of s 13(3) as applyingonly to s 13(2)(b)(i) rather than the whole of s 13(2)(b) was erroneous because it:(a) failed to recognise the interconnection between the two subparagraphs;(b) did not account for the application of s 13(2A)–(3);(c) failed to apply the plain wording of the subsection; and(d) failed to recognise that the broader interpretation was consistent withinternational law, the purpose of the Act, and previous decisions ofthis Court.46 Fisheries Act, s 75(2)(b)(vi).47 Court of Appeal Kahawai case, above n 45, at [94].[70] For convenience we repeat s 13(3):In considering the way in which and rate at which a stock is moved towardsor above a level that can produce maximum sustainable yield under subsection(2)(b) or (c), or (2A) (if applicable), the Minister shall have regard to suchsocial, cultural, and economic factors as he or she considers relevant.[71] We start with the natural and ordinary meaning of the text. We see nosignificance in the fact that s 13(3) refers only to "subsection (2)(b) or (c)".The opening words of s 13(3) make it perfectly clear that it will only be engaged whenthe "way" and "rate" are being considered. This is not inconsistent with the referenceto s 13(2)(b). Further, reading "subsection (2)(b) or (c)" as including the periodappropriate to the stock enquiry under subsection (2)(b)(ii) would make no senseunless one disregarded the opening words of s 13(3), which is not tenable. The onlysensible interpretation of s 13(3) is that it is limited to consideration of the way inwhich and rate at which stock is moved towards the requisite level.[72] This reading is not undermined by the fact that s 13(3) also applies to thealternative TAC setting procedure in s 13(2A). The circumstances in which a s 13(2A)enquiry is undertaken are entirely different and, significantly, subs (2A) does notrequire the identification of a period appropriate to the stock. But in any event, it isthe words "[i]n considering the way in which and rate at which a stock is movedtowards or above a level that can produce maximum sustainable yield" that, again,directs the consideration of social, cultural and economic factors towards the "way"and "rate" enquiry alone. This interpretation is not a reading down of s 13(3) butsimply a reading of the natural and ordinary meaning of the words. Moreover, it isentirely consistent with the dominant consideration of sustainability as opposed toutilisation.[73] We do not accept that this Court has, in previous cases, made statements thatwould permit the interpretation of s 13(3) now contended for. Mr Scott reliedparticularly on Greenpeace New Zealand Inc v Ministry of Fisheries (the OrangeRoughy case) and the Snapper case.48 The Judge dismissed both as not relevant, giventhat they were decided under the 1983 Act.49 Mr Scott did not accept this.[74] The Orange Roughy case concerned the judicial review of the setting of aTACC under the 1983 Act. One of the matters the Minister was required to have regardto in setting the TACC was the TAC, which was defined as:50 with respect to the yield from a fishery, means the amount of fish thatwill produce from that fishery the maximum sustainable yield, as qualified byany relevant economic or environmental factors, fishing patterns, theinterdependence of stocks of fish, and any generally recommendedsub-regional or regional or global standards.[75] Although a 10-year rebuild period had been selected, a staged implementationhad been adopted to mitigate the effect on the industry that would result from thereduction in permitted catch. The Minister's decision postponed the reduction in catchin the first year. The parties were divided over whether, in setting the TAC, theobjectives of conservation or sovereignty and economic management ought to prevail.Gallen J considered that, while it was appropriate to place emphasis on conservation,including the restoration of stocks to a level that can produce MSY, that obligation hadto be seen in light of relevant environmental and economic factors.51 He concludedthat:52In summary to this point then, I conclude that the MSY is that yield whichcould be sustained from the virgin biomass without depleting it, but that yieldis a potential yield an objective which the setting of the TAC must be directedtowards; that the attainment of that objective must be predicated within areasonable time period so that a programme may be seen as extended throughthat time period. In arriving at what is an appropriate time period, all factorsmust be taken into account and these can reasonably include economic andsocio-economic factors; that each TAC fixed must be such as not tocompromise the MSY or the programme and period by and within which thatobjective is to be attained, but need not necessarily promote the MSY in thesense of shortening the timeframe within which it is to be achieved. 48 Greenpeace New Zealand Inc v Minister of Fisheries HC Wellington CP 492/93, 27 November1995 [Orange Roughy case]; and Snapper case, above n 43.49 Judgment under appeal, above n 4, at [86].50 Fisheries Act 1983, s 2(1) definition of "total allowable catch".51 Orange Roughy case, above n 48, at 19.52 At 29 (emphasis added).[76] Mr Scott relied on the italicised words in Gallen J's statement as supportingFisheries Inshore's interpretation that social, cultural and economic factors wererelevant to determining the appropriate period under s 13(2)(b)(ii). He argued thatthe Judge erred in dismissing the Orange Roughy case as irrelevant because it wasdecided under the 1983 Act.[77] We agree with the Judge that the Orange Roughy case does not assist in theinterpretation of the current Act. First, Gallen J's conclusion was made in the contextof his view that sustainability did not have priority over utilisation, which must nowbe read in light of the statement in the Supreme Court Kahawai case that the overridingobjective is sustainability.53 Secondly, the 1983 Act did not require determination ofa period appropriate to the stock. Gallen J's interpretation of the relevant statutoryprovision was undertaken without the benefit of the much more specific provisions ofthe current s 13. Given the significantly different statutory context, particularly thefact that the definition of total allowable catch under the 1983 Act was based on amaximum sustainable yield qualified by, among other things, relevant economicfactors, it is not possible to treat Gallen J's comments as assisting in the interpretationof the current statutory framework in which social, cultural and economic factors havebeen explicitly separated from biological and environmental factors.[78] The Snapper case concerned a successful challenge to the Minister's decisionssetting the TACC for the 1995/1996 and 1996/1997 fishing years.54 The determinativeissue was whether the definition of TAC under the 1983 Act imposed an obligation onthe Minister to move the fishery to MSY over time. The Court held that it did, thoughsubject to the "qualifiers" of social, cultural and economic factors included in thedefinition of TAC.55 By the time the case was decided, the current Act was in forceand the Court did not see any need to order reconsideration by the Minister becausethat would effectively occur when the decision was made under the current Act for the1997/1998 year.56 However, for the assistance of the parties in relation to the53 Supreme Court Kahawai case, above n 7, at [39]–[40].54 Snapper case, above n 43.55 At 12–15.56 At 27.forthcoming year's decision, the Court made the following observations regarding s 13of the current Act:57It is thus made clear that in setting the TAC for a fishery whose yield is belowMSY the Minister has an obligation to move the stock in question towards orabove a level which can produce MSY. It is similarly made clear that whatused to be called the qualifiers (now expressed as such social, cultural andeconomic factors as the Minister considers relevant) are matters to which theMinister must have regard when he considers the way in which and the rate atwhich the stock is moved towards or above MSY. In short, the Minister nowhas a clear obligation to move the stock towards MSY and when deciding uponthe time frame and the ways to achieve that statutory objective the Ministermust consider all relevant social, cultural and economic factors. For the futurethe Minister might think it wise in making his decision to refer expressly tothe social, cultural and economic factors which he has considered to berelevant to his decision, and any matters pressed upon him which he has notconsidered to be relevant.[79] Mr Scott had relied on these comments as indicating that in setting the TACunder s 13(2), there did not need to be a separate analysis of what is an appropriateperiod and that the "qualifiers", including economic factors, applied to the time framefor the rebuild. The Judge did not accept that the Snapper case had any significancefor the decision before her, treating the comments above as plainly obiter.58 Mr Scottsubmitted that the Judge's characterisation of these comments was wrong because thecomments were made after full argument on the effect of the current Act and for thepurpose of assisting the parties in the setting of the TAC under that Act.[80] Strictly, the statements regarding s 13 were obiter. As the Court made clear, itwas the decisions made under the 1983 Act that were for determination.59 No issuearose for determination under the current Act. We also agree with the Judge that, inany event, when the passage is read as a whole it does not clearly support the viewthat the "period appropriate to the stock" in s 13(2)(b)(ii) is subject to social, culturaland economic factors.60 The brevity of the comments suggests that the issue was notthe subject of substantial argument and cannot fairly be regarded as a considered viewof the correct interpretation of s 13. We read the passage as summarising, in a very57 At 14–15.58 Judgment under appeal, above n 4, at [86].59 Snapper case, above n 43, at 5.60 Judgment under appeal, above n 4, at [88].general way, the effect of s 13(2)(b), rather than purporting to be an exercise instatutory interpretation.[81] Mr Scott criticised the Judge's reliance on the High Court's decision inNew Zealand Recreational Fishing Council Inc v Minister of Fisheries (High CourtKahawai case).61 The Kahawai case was concerned with the relevance of social,cultural and economic considerations in the context of a reduction to the TAC forkahawai. In considering the argument that the Minister had failed to take into accountthe non-commercial fishing sector's social, economic and cultural wellbeing inreducing the TAC for kahawai, Harrison J said:[49] [The Ministry's advice regarding reduction of the TAC] was acautious step, proposed in recognition of the effect upon the stock of the higherthan originally assessed level of recreational catch or use. In considering theway and rate at which this objective was carried out the Minister was boundto "have regard to such social, cultural and economic factors as he considers relevant": s 13(3). It is significant that these factors do not constitutethe criterion for setting the level of the TAC itself but only arise fordiscretionary consideration when determining the manner and speed ofrestoring the stock to the level of maximum sustainable yield.[50] Mr Galbraith's argument is that when advising the Minister on theTACs [the Ministry] was blinkered or blinded by its reliance on catch historydata as the primary criterion to the exclusion of people's "social, economicand cultural wellbeing". But the argument must fail once it is recognised that"social, economic and cultural wellbeing" is not the mandatory statutoryguideline for fixing a sustainability measure. The Minister was not bound tohave regard to the concept of wellbeing at all but to "such social, cultural andeconomic factors" which he considered relevant, and then only in structuringthe stock's return to maximum sustainable yield, not in setting the level of theTAC itself. [82] In this case, the Judge relied on these statements when considering theinterpretation of s 13(3).62 In doing so, she noted that the High Court decision wasoverturned on appeal and the Court of Appeal's decision upheld by the Supreme Courtbut did not consider that Harrison J's view was undermined because in theSupreme Court the only ground of appeal pursued related to s 21, not s 13(3).63Mr Scott submitted that the Judge erred in relying on Harrison J's statements becauseof the outcome on the subsequent appeals. There is no merit in this submission.61 New Zealand Recreational Fishing Council Inc v Minister of Fisheries HC AucklandCIV-2005-404-4495, 21 March 2007 [High Court Kahawai case].62 Judgment under appeal, above n 4, at [90].63 At [91].The application of s 13(3) was not the subject of either appeal. Further, the statementsset out above were not criticised in either this Court or the Supreme Court. To thecontrary, in the Court of Appeal Kahawai case, O'Regan J observed that:64Section 13(3) is limited in scope. It comes into play only where the Ministeris considering the way in which and the rate at which a stock is moved towardsor above BMSY. It requires only that the Minister consider such of those factorsas he or she considers relevant.[83] We are satisfied that, to the extent previous cases have included observationsabout the interpretation of s 13(3), the observations made support the approach takenby the Judge.[84] Mr Scott argued that the Judge's interpretation of s 13(3) fails to give effect tothe dual purpose of the Act. This submission was made in reliance on theSupreme Court Kahawai case, in which he said the Supreme Court emphasised that,provided sustainability can be ensured, fisheries can be utilised and there is flexibilityunder s 13 to allow for utilisation. With respect, we do not read the statements by theSupreme Court as so broad. The Supreme Court said:65[44] While sustainability is the guiding criterion, the Minister has someflexibility under s 13 to consider aspirations of the fishing sectors forutilisation of the resource. In considering the way in which, and rate at which,a stock is moved towards or above a level producing a maximum sustainableyield, the Minister must have regard to "social, cultural, and economic factorsas he or she considers relevant". This imports into the process for setting thetotal allowable catch a key aspect of the definition of "utilisation" in s 8(2).[85] It is plain to us that the flexibility referred to was limited to the additionalconsiderations that could be taken into account in deciding the way and rate ofmovement of the fishery towards MSY. The comments do not support aninterpretation that social, cultural and economic factors could be taken into account indetermining the appropriate period for restoration of the fishery.[86] Lastly, we turn to Mr Scott's argument that because a rebuild period selectedunder s 13(2)(b)(ii) can be longer than Tmin — under the HSS it can be up to 2*Tmin —the appropriate period under s 13(2)(b)(ii) necessarily permits some level of fishing64 Court of Appeal Kahawai case, above n 45, at [50].65 Supreme Court Kahawai case, above n 7 (footnote omitted).and that means that the effects of fishing, that is, the socio-economic factors, need tobe taken into account.[87] In our view the answer to this argument lies in the fact that recognised bestpractice represented by the HSS builds some allowance for socio-economic factorsinto the calculation of the appropriate rebuild period of Tmin to 2*Tmin. A number ofthe expert witnesses commented on this.[88] Dr Pamela Mace, a Principal Advisor of Fisheries Science for FisheriesNew Zealand, who was instrumental in producing the HSS, explained the basis onwhich the appropriate period within which a rebuild could occur is identified:25. As with most other metrics in the HSS, those chosen for the rebuildingtimeframe are default values, and as such they can be varied so longas there is appropriate justification. The reason for not choosing adefault multiplier higher than 2 for Tmin (where Tmin is the minimumtime to rebuild a stock, which requires that there is absolutely nofishing of that stock) in the HSS is because there are highlyconsequential reasons for rebuilding as quickly as feasible.26. A rebuilt fish stock confers several benefits, particularly forEast Coast tarakihi for which the rebuilt state represents a stock sizethat is about 2.5 times (250%) higher than the current level. 27. However, achieving these longer-term benefits requires short-termpain, that is potentially appreciable, associated with a loss of revenueduring some of the rebuilding period, particularly in the early stagesof the rebuilding period when TACCs are lower and stocks have yetto increase significantly. These short-term financial considerationsand other socio-economic factors such as potential business collapsesalso need to be taken into account.28. Determining an appropriate period of rebuild in a given case is adifficult question to answer as the trade-offs involve short-termappreciable consequences relative to longer-term gains, and while thelatter may take longer to achieve, a longer rebuilding period willalleviate some of the short-term consequences.29. In my view, reasonable minds may have different views aboutappropriate rebuilding periods, including many of my sciencecolleagues.35. The multiplier of 2 in the default Tmin to [2*Tmin] rebuilding timeframetakes some level of account of socio-economic factors, in that Tmin isthe rebuilding time in the complete absence of fishing, which wouldmean closing both the East Coast target tarakihi fisheries and all otherfisheries in this area that incidentally capture tarakihi as a bycatchspecies. However, it is usually very difficult to completely eliminatefishing, even if a fishery is closed, as the species in question is likelyto continue to be caught at some level in association with otherfisheries legitimately still operating. Also, it is not necessary oradvisable to completely close fisheries when a stock is not estimatedto be below the hard limit.36. The HSS and associated Operational Guidelines do not make explicitrecommendations on how socio-economic factors should be takeninto account as they are both primarily concerned with biologicalconsiderations. [89] Matthew Dunn, a principal scientist with the National Institute of Water andAtmospheric Research Ltd, confirmed that:50. [Tmin] is estimated scientifically and takes account of the biologicalcharacteristics of the stock, including growth, natural mortality rate,and reproduction. [Tmin] will therefore vary with the species and stockunder consideration.51. A rebuild period of [2*Tmin] makes an allowance for fishing to takeplace whilst the stock is rebuilding. [90] Dr Marc Griffiths, a Principal Advisor at Fisheries New Zealand, explainedthat:[2*Tmin] is longer than Tmin (being the closure of the fishery) and insofar as itenables a longer period of rebuilding, it does take some account ofsocio-economic factors. However, the [2*Tmin] proxy does not includesocio-economic considerations specific to individual fisheries, or culturalconsiderations. In my view, this is the role of FNZ managers and the Minister.[91] We draw the following conclusions from this evidence. A "period appropriateto the stock, having regard to the biological characteristics of the stock and anyenvironmental conditions affecting the stock" is necessarily based on expert scientificopinion. Opinion may differ, but the consensus of scientific opinion as to best practiceis reflected in the HSS, which builds in an allowance for some fishing to recognisegeneral social, cultural and economic factors.[92] However, the fact that scientific opinion makes some allowance for generalsocial, cultural and economic factors in assessing what an appropriate period is doesnot mean that, in selecting the appropriate period under s 13(2)(b)(ii), the Minister isfree to make further allowance for social, cultural and economic factors specific to thecase at hand under s 13(3). Those factors are properly limited to assessing the wayand rate of the rebuild. As we have previously concluded, the "period appropriate tothe stock" referred to in s 13(2)(b)(ii) constrains the rebuild period that wouldotherwise result from determining the way and rate of rebuild under s 13(2)(b)(i) byproviding an outer limit within which the rebuild must occur. A rebuild period basedon social, cultural and economic factors can be expected to be longer than one set byreference only to the scientific factors. Section 13(2)(b)(ii) will only fulfil its functionas a control on the rebuild period if the "appropriate period" is determined only byreference to those factors. We therefore respectfully disagree with Goddard J'scharacterisation of s 13(2)(b)(i) and (ii) as two sides of the same coin and hissuggestion that to decide the way and rate of rebuild also decides the period ofrebuild.66[93] It follows that we do not accept the Minister's argument that s 13(2)(b)(ii)contemplates a range of periods. We agree with Forest & Bird's response thatthe Minister's approach is misconceived because the requirement in s 13(2)(b)(ii) torebuild "within" a period appropriate to the stock means that rebuilding within thelongest period appropriate to the stock or any shorter period would always satisfys 13(2)(b)(ii). There is no need for the unnecessary gloss of allowing for a range ofperiods from which a specific period is selected on the basis of considerations otherthan those permitted by s 13(2)(b)(ii).[94] We do not, however, see the need to identify the "appropriate period" withinwhich the rebuild must occur before the "way and rate" of the rebuild. Once it isunderstood that the period appropriate to the stock is the dominant enquiry because itprovides the outer limit within which the rebuild can occur, it does not matter whetherthe period is fixed first or used as a cross-check that the way and rate selected canproduce the desired result within the appropriate period. Having said that, weacknowledge the practicality of identifying the appropriate period first.66 Below at [203], [214], [232] and [237].Was the Minister entitled to consider the IRP under s 13(2)(b)(ii)?[95] It will be clear from our analysis that the IRP would need to be a scientificfactor for it to be a relevant consideration under s 13(2)(b)(ii). Fisheries Inshore andTe Ohu did not claim that the IRP was a scientific factor, and nor could they have.The Minister agreed with Forest & Bird that the IRP was an irrelevant considerationunder s 13(2)(b)(ii).[96] It follows that the IRP was an irrelevant consideration in determining theappropriate period under s 13(2)(b)(ii) and the Judge did not err on this point.Submissions on behalf of Te Ohu[97] Te Ohu is the trustee of the Te Ohu Kai Moana trust established under s 31 ofthe Maori Fisheries Act 2004. Section 32 of the Maori Fisheries Act outlines the trust'spurpose as being to advance the interests of iwi individually and collectively, primarilyin the development of fisheries, fishing and fisheries-related activities in order, amongother things, to further the agreements reached between the Crown and Māori inSeptember 1992 under a deed of settlement, the key terms of which are recorded inthe Treaty of Waitangi (Fisheries Claims) Settlement Act 1992 (the FisheriesSettlement Act).67[98] Te Ohu has a variety of interests in the East Coast tarakihi stock, including asan owner of quota shares as trustee for iwi and as an owner of income shares inAotearoa Fisheries Ltd, which has direct and indirect interests in quota shares.68Te Ohu supports the arguments made by Fisheries Inshore and advancessupplementary arguments. In relation to Issue 1 it says, essentially, that Te Ohu'sstatutory role and mandate under the Fisheries Settlement Act and the wider contextof Te Tiriti require that social, cultural and economic considerations relating toiwi Māori (including the IRP) be taken into consideration in decision-making relatingto fisheries. It also relies on specific provisions of the Fisheries Act — ss 5 and 12 —67 The Fisheries Deed of Settlement 23 September 1992 finally settled the litigation brought byMāori to challenge the validity of the QMS. Its key terms are recorded in the preamble of theTreaty of Waitangi (Fisheries Claims) Settlement Act 1992.68 Te Ohu was joined to the High Court proceeding as a respondent on its own application: RoyalForest and Bird Protection Society of New Zealand Inc v Minister of Fisheries [2020] NZHC 741.as being to the same effect. On this basis, it says that s 13(2)(b) and (3) should beinterpreted so as to take into account and fully recognise the relevant social, culturaland economic considerations affecting iwi Māori and the Judge's interpretation failsto do that.[99] The Fisheries Settlement Act included the acknowledgement by Māori that theQMS was a lawful and appropriate regime for the sustainable management ofcommercial fishing in New Zealand. It also included an undertaking by the Crown toamend the Fisheries Act 1983 so as to authorise the allocation to Māori of 20 per centof any new quota issued as a result of extension of the QMS to fish species not includedin the QMS at the date of the settlement.69 The Fisheries Act 1996 reflects thoseaspects of the Fisheries Settlement Act. Section 5 of the Fisheries Act contains ageneral direction that the Act be interpreted in a manner consistent with theFisheries Settlement Act. Section 12(1) requires the Minister to consult with people,including Māori, having an interest in fish stocks or the effects of fishing on the aquaticenvironment. It also requires the Minister to provide for the input and participation oftangata whenua having a non-commercial interest in the stock or an interest in theeffects of fishing on the aquatic environment in the area concerned. Those obligationsarise in relation to (among others) the setting and varying of TACs unders 13(1) and (4). Notably, they do not arise in relation to the setting and varying ofTACs under s 13(2) and (3).[100] Mr Ferguson, for Te Ohu, simply raised ss 5 and 12 of the Fisheries Act in ageneral way. He did not identify any specific aspect in which the Judge's interpretationran counter to the Fisheries Settlement Act. Nor did he assert a failure to consult and,given the evidence of Mr Drummond for Te Ohu, there does not seem to be any basison which he could have done so. Mr Drummond described extensive engagementwith Fisheries New Zealand from June 2018 in relation to the setting of the TACs andthe formulation of the IRP for use in that process.[101] As we have discussed, the legislative history of the Fisheries Act culminatedin the decision to adopt sustainability as a predominant purpose. While the69 Treaty of Waitangi (Fisheries Claims) Settlement Act, preamble, recording the terms of agreementof the Fisheries Deed of Settlement 23 September 1992, cls 3.2 and 4.2.Fisheries Act explicitly acknowledges and protects the scope of theFisheries Settlement Act, the latter is not inconsistent with that purpose and does notrequire the Fisheries Act to be interpreted in a way that would undermine it.[102] As is evident from our earlier conclusion, interpreting s 13(2)(b) so as to allowsocial, cultural and economic considerations to be taken into account in identifyingthe period under s 13(2)(b)(ii) within which the rebuild could be undertaken wouldundermine the statutory purpose. In any event, it cannot fairly be suggested that nottaking them into account in the appropriate period enquiry results in them beingstripped out of the decision-making process, given that they are to be taken intoaccount in the "way and rate" enquiry. Nor, given the extensive, specific provisionsmade in recognition of the Fisheries Settlement Act, could a general reliance onTe Tiriti, without more, justify departing from an orthodox exercise in statutoryinterpretation.Issue 2: 70 per cent probability of achieving rebuild plan as a relevantconsiderationThe issue on appeal[103] The parties have different views on how the second issue should be framed.This reflects their differing views of the pleaded third cause of action, which is thefocus of the appeal. We start with the Judge's determination of the second cause ofaction, which, although not under challenge, provides important context for thethird cause of action.[104] In its second cause of action, Forest & Bird alleged that the 2019 decision had,at most, a 50 per cent probability of achieving the targeted rebuild and that level ofprobability meant that the decision failed to meet the statutory requirement of enablingthe tarakihi stock to be altered within a period appropriate to the stock. The Judgeaccepted that the probability of achieving a rebuild target was a relevant considerationin setting the TAC but did not accept that proceeding on the basis of a 50 per centprobability was an error of law:7070 Judgment under appeal, above n 4.[116] Determining a probability figure is an integral part of the process offixing a TAC in the context of a fish stock that is below the level which canproduce MSY. [117] The level of probability goes directly to achievement of the rebuildtarget within the appropriate period for the stock. Failing to determine theprobability level, or accepting it at a very low level, undermines the integrityof the process and potentially renders the rebuild target moot. Theprobability level should be determined at the time of setting the TAC..[126] I am not able to conclude that in this case setting a target with a 50 percent probability of it being achieved within the specified period was an errorof law. I consider the criticisms of the probability in relation to the guidancein the HSS in more detail below, under the third cause of action.[105] Although Fisheries Inshore's notice of appeal signalled a challenge tothe Judge's findings on the second cause of action, no specific submissions were madein relation to it. In oral argument Mr Scott accepted that, in setting the TAC,the Minister had to be satisfied with the probability that the rebuild would be achievedbut did not accept that the Minister was required to identify a specific level ofprobability. As a result, the appeal against the findings on the third cause of actionnecessarily proceeds on the basis that the probability of achieving the rebuild targetwas a relevant consideration.[106] The third cause of action asserted that there was a default probability standardof 70 per cent that was a mandatory consideration. Because the Fisheries Act makesno mention of a specific standard of probability, Forest & Bird's case depended onestablishing both that a default standard existed and that it was an implied mandatoryconsideration.[107] Forest & Bird pleaded that:37. In making the 2019 TAC decisions, the Minister failed to take intoaccount a relevant consideration, concerning the [HSS] and OperationalGuidelines.Particulars — failure to take into account relevant considerationg. The Minister set a combined TAC with a 50% probability ofachieving the target within the rebuild timeframe.h. The [HSS] provides that where a stock is below the "softlimit" it should be rebuilt to at least the target level in atimeframe between Tmin and 2*Tmin with an acceptableprobability.i. The Operational Guidelines specify that 70% is the minimumstandard for the acceptable probability of rebuild for a stockthat is below the "soft limit" because a stock that has beenseverely depleted is likely to have a distorted age structure (anover-reliance on juvenile fish, with relatively few large,highly fecund fish) and that in such instances it is necessaryto rebuild both the biomass and the age composition.j. The Minister failed to have regard to the minimum standardof "acceptable probability" of 70% for rebuilding depletedstocks, and the reasons for that higher probability.[108] The Judge described this cause of action as follows:71[128] Both the second and third causes of action relate to the level ofprobability for achieving the rebuild of the stock. While the second cause ofaction focused on whether the Minister erred in law by adopting an approachwith a likely probability of 50 per cent, the third cause of action focuses onwhether the HSS guidance on probability was a relevant consideration theMinister failed to consider.[129] The third cause of action alleges the Minister failed to have regard toa relevant consideration, namely the HSS, which specifies 70 per cent as theminimum standard for the acceptable probability of rebuild for a stock suchas East Coast tarakihi.[131] Forest & Bird says that even if the Minister was entitled to set a TACthat would rebuild to MSY with a 50 per cent probability, in making thatdecision the Minister ought to have had regard to the best practice guidanceas to the acceptable probability of rebuild for depleted stocks and why thehigher probability is warranted. Forest & Bird noted the HSS level is the bestpractice, and having regard to it is consistent with the obligation to use bestavailable information. [109] The Judge's reference to the obligation to use the best available information isa reference to s 10(a) of the Fisheries Act, which provides:71 Emphasis added.All persons exercising or performing functions, duties, or powers under thisAct, in relation to the utilisation of fisheries resources or ensuringsustainability, shall take into account the following information principles:(a) decisions should be based on the best available information:[110] The Judge concluded that, although there was no reference to the HSS inthe Act and s 13 did not refer to the assessment of probability as part of the process ofsetting a TAC, the HSS was the "best available information" for the purposes of s 10(a)in relation to acceptable probability levels and other matters relevant to theinterpretation of s 13.72 The Judge went on to find that the Minister had not consideredthe HSS guidance in relation to probability when making the 2019 decision andtherefore failed to take into account a mandatory consideration.73[111] Fisheries Inshore contends that Forest & Bird's pleading did not, in fact, assertthat the HSS specified 70 per cent as the default probability for rebuild — only thatthe Operational Guidelines contained a default probability standard. Nor had itpleaded that the HSS was the "best available information" about probability for thepurposes of s 10(a). Therefore, the Judge erred in even considering whether the HSSwas "the best available information" and the appeal had to be limited to whether theOperational Guidelines were an implied mandatory consideration.[112] Ms Gepp, for Forest & Bird, says that Forest & Bird simply pleaded thatthe Minister was to have regard to the minimum probability of 70 per cent and thereasons for it; the HSS and Operational Guidelines were merely particulars. Ms Geppalso submitted that, although Forest & Bird did not assert that the Minister had failedin a duty under s 10(a), the Judge was entitled to refer to s 10(a) and to considerwhether the HSS was the "best available information" when considering whether itwas an implied mandatory consideration. Forest & Bird therefore frames the secondissue on appeal as whether the HSS specifies an acceptable probability of 70 per centand, if so, whether the HSS and/or the Operational Guidelines are implied mandatoryconsiderations.72 At [148] and [152]–[153].73 At [167]–[168].[113] As set out earlier, paragraph 37 of the statement of claim identifies the relevantconsideration as arising under both the HSS and Operational Guidelines. However,particular (h) refers only to the HSS requirement for a rebuild plan with "an acceptableprobability" of reaching its target. Read alone, it would not convey a requirement fora probability of 70 per cent arising under the HSS. Particular (i) refers only to theOperational Guidelines as containing the 70 per cent standard of acceptableprobability. Read alone it asserts that the probability standard appears only in theOperational Guidelines. However, particular (j) simply refers to the minimumstandard of acceptable probability of 70 per cent, without reference to either the HSSor the Operational Guidelines. Read either alone or as the culmination of the precedingparticulars, it asserts that under either or both of the HSS and the OperationalGuidelines the acceptable probability standard is 70 per cent.[114] In our view it is therefore appropriate to frame the second issue broadly, asproposed by Forest & Bird, so that the question of whether there was an impliedmandatory consideration is directed at both the HSS and the Operational Guidelines.We therefore address Issue 2 as follows:(a) Does the HSS specify a default probability standard for rebuild of70 per cent (and reasons for that default probability) that is relevant torebuilding plans for stocks below the "soft limit"?(b) If yes, was the 70 per cent default probability contained in the HSS animplied mandatory consideration in setting the TACs for East Coasttarakihi in 2019?(c) Was the 70 per cent probability of rebuild and the reasons for thatprobability specified as the default probability in the OperationalGuidelines an implied mandatory relevant consideration in settingthe TACs for East Coast tarakihi in 2019?[115] We note that it was common ground between the parties that the Minister didnot consider the probability of 70 per cent when making his decision.Does the HSS specify 70 per cent as the default probability for a rebuild plan?[116] The relevant section of the HSS is that addressing the "Core Elements" ofthe HSS. These are the core elements described earlier and include the soft limit thattriggers a requirement for a formal, time-constrained rebuilding plan. This section ofthe HSS begins with a stated objective, to which we return later. It then provides"Specifications" relating to each of the core elements. In relation to the soft limit, itrelevantly states:74 The default soft limit is ½ BMSY or 20% B0, whichever is higher. The soft limit will be considered to have been breached when theprobability that stock biomass is below the soft limit is greater than50%. Stocks that have fallen below the soft limit should be rebuilt back toat least the target level in a time frame between Tmin and 2 * Tmin withan acceptable probability. Stocks will be considered to have been fully rebuilt when it can bedemonstrated that there is at least a 70% probability that the target hasbeen achieved[75] And by way of footnote to the fourth specification:Use of a probability level greater than 50% ensures that rebuilding plansare not abandoned too soon; in addition, for a stock that has been depletedbelow the soft limit, there is a need to rebuild the age structure as well asthe biomass, and this may not be achieved by using a probability as lowas 50%.[117] For completeness, the Operational Guidelines state:76For both limits [soft and hard limit], the ultimate goal is to ensure fullrebuilding of the stock to the biomass target with an acceptable probability(70%). The reason for requiring a probability level greater than 50% is that astock that has been severely depleted is likely to have a distorted age structure(an over-reliance on juvenile fish, with relatively few large, highly fecundfish). In such instances it is necessary to rebuild both the biomass and the agecomposition.74 HSS, above n 5, at 7–8 (footnotes omitted). For convenience, we refer to these as the first–fourthspecifications.75 Despite the fourth specification identifying a probability standard of "at least 70%", referencethroughout the case was simply to a standard of 70 per cent. We therefore refer only to 70 per centas the probability standard relied on.76 Operational Guidelines, above n 5, at 10 and 12.The minimum standard for a rebuilding plan is that 70% of the projectedtrajectories will result in the achievement of a target based onMSY-compatible reference points or better within the timeframe of Tmin to2*Tmin. This equates to a probability of 70% that the stock will be above thetarget level at the end of the timeframe.[118] Mr Scott argued that only the third specification of the HSS applies to therebuilding plan and it leaves the question of acceptable probability for determinationby the Minister. He says that the fourth specification does not apply to the rebuildplan and is to be read separately and as relating to the state of the fish stock at the endof the rebuild.[119] Ms Gepp argued that it would be illogical to treat the 70 per cent probabilitystandard in the fourth specification as applying only at the end of a rebuild becausethe position at the end of the rebuild is affected by the trajectory chosen at the start ofthe rebuild. In other words, the requirement that a stock be "rebuilt with anacceptable probability" cannot be separated from the requirement that a stock "will beconsidered to have been fully rebuilt" when there is a 70 per cent probability that thetarget has been achieved. This is because the probability of the rebuild at the outset isdirectly relevant to achieving the target within the period that has been determined asappropriate to the stock. Mr Scott rejected this argument. His response was thatbecause things could change over the course of the rebuild plan (for example, as aresult of the IRP), it was possible that the desired probability would be reached soonereven if it started with a lower probability target.[120] In discerning the meaning of the third and fourth specifications, we see thestarting point as the HSS' stated objective, which is:77 to provide a consistent and transparent framework for setting fishery andstock targets and limits and associated fisheries management measures, so thatthere is a high probability of achieving targets, a very low probability ofbreaching limits, and acceptable probabilities of rebuilding stocks thatnevertheless become depleted, in a timely manner. The [HSS] specifiesappropriate probabilities that will achieve each of these outcomes.[121] The last sentence indicates an intention that the HSS would specify theappropriate probability for rebuilding depleted stocks in relation to setting fishery77 HSS, above n 5, at 7 (emphasis added).stock targets and limits. While the fourth specification could be read as Mr Scottcontends, that construction would mean — contrary to the stated objective — that theacceptable probability of rebuild plans is not specified in the HSS. It would also meanthat the fourth specification would do no more than provide a means of measuringsuccess at the end of the target period. Because of the length of rebuild periods, thiswould not assist, either significantly or at all, in providing a framework for settingfisheries targets and limits to achieve the stated outcomes.[122] Although our reasoning is slightly different, we agree with Ms Gepp'ssubmission that the effect of the third and fourth specifications cannot be separated.In our view the more natural construction, and one that would fulfil the stated objectiveof the HSS, is to read them conjunctively. The third specification makes it clear thatthe rebuild plan comprises not only a target level and requisite time frame but also anacceptable probability of achieving those goals. The acceptable probability is essentialbecause the target level and time frame are not absolutes — they are measured byreference to the probability of their being achieved. It is unlikely this central factorwould not be specified in the HSS, given that the stated objective is to do exactly that.We therefore see the fourth specification as supplementing or explaining the thirdspecification.[123] This construction would reflect the format of the first and secondspecifications, which are clearly intended to be read together. It would also beconsistent with the explanatory footnote, which is directed towards how the target canbe reached — a prospective view rather than a hindsight assessment. We do not acceptMr Scott's argument that the fourth specification can be explained by the possibilityof something happening during the rebuild period that results in the target beingreached earlier than anticipated. The effect of the footnote is explicitly against thatapproach.[124] We conclude that the HSS does specify a default minimum acceptableprobability standard for a rebuild plan of 70 per cent.Is the default probability standard of 70 per cent in the HSS an implied mandatoryconsideration?[125] Issue 2 is directed towards whether the default probability of 70 per cent inthe HSS and the reasons for it are also mandatory considerations. As noted, the Judgehad held (in relation to the second cause of action) that the probability of achievingthe rebuild target is a mandatory consideration in setting the TAC.78[126] The Judge began her analysis of this issue by considering whether the HSS wasthe "best available information" under s 10 before going on to determine that the HSSwas an implied mandatory relevant consideration under s 13:79[148] There is no reference to the HSS in the Act. Nor does s 13 of the Actrefer to the assessment of probability as part of the process of setting a TAC.But, as Dr Mace acknowledges "the HSS still largely represents internationalbest practice in terms of the purpose for which it was designed", and it is the"best available information" in terms of s 10 of the Act.After reviewing the evidence given on behalf of Fisheries Inshore she said:[152] I conclude that the HSS is the "best available information", in termsof s 10(a), in relation to acceptable probability levels, as well as for othermatters relevant to the interpretation of s 13.The Judge then made a finding that "although the HSS is not referred to in the Act, itis an implied mandatory relevant consideration for the Minister in setting a TAC unders 13".80[127] This last finding was followed by a statement of the law and a fullerexplanation of the Judge's reasons, which we discuss later.[128] Mr Scott submitted that the Judge erred in even considering the question ofwhether the HSS was the "best available information" under s 10 and that, in anyevent, the HSS was not "information" much less "the best available information" forthe purposes of s 10(a). He also submitted that the Judge had applied the wrong test78 Judgment under appeal, above n 4, at [127(a)].79 Footnote omitted. It is common ground that the words "and it is 'the best available information'in terms of s 10 of the Act" was the Judge's finding rather than the evidence of Dr Mace.80 At [153].for determining an implied mandatory relevant consideration and that, on the correcttest, the HSS was not an implied mandatory relevant consideration.Was the Judge entitled to consider whether the HSS was "the best availableinformation" for the purposes of s 10(a)?[129] As Miller J observed in Antons Trawling Co Ltd v Minister of Fisheries,a TAC-setting decision should begin by identifying the best available information.81It follows that if information satisfying that description is available, which relates toan aspect of the decision required to be made under s 13(2)(b), then that informationis necessarily a relevant consideration.[130] However, Mr Scott argued that the Judge erred in considering this issuebecause Forest & Bird had not pleaded that the 70 per cent probability standard wasthe "best available information", nor that the Minister had made an error of law infailing to take this into account as a breach of the information principles in s 10, andnor had its evidence treated the HSS and Operational Guidelines as such. Mr Scottsubmitted that, correctly characterised, Forest & Bird's case was that the HSS andOperational Guidelines set out policy and the Government's view of best practicerather than being "information" in terms of s 10.[131] Forest & Bird could have pleaded that the HSS represented the best availableinformation and was therefore an implied mandatory consideration. However, itsimply pleaded that the minimum standard of probability in the HSS was a relevantconsideration that the Minister failed to take into account. Doing so had the effect ofa short-cut, directing the enquiry towards the ultimate answer rather than the route bywhich the necessary implication would be drawn. However, we do not see any errorby the Judge in considering the question of implication by reference to s 10(a).The HSS was advanced in the evidence as a statement of best practice. Addressingthat evidence would lead, inevitably, to s 10(a) because of the obvious proposition thata statement of best practice would arguably also represent the best availableinformation.81 Antons Trawling Co Ltd v Minister of Fisheries HC Wellington CIV-2007-485-2199,22 February 2008 at [61].Did the Judge err in finding that the HSS was "the best available information"?[132] The HSS describes itself in the following way:822. The [HSS] is a policy statement of best practice in relation to thesetting of fishery and stock targets and limits for fishstocks in New Zealand's[QMS]. It is intended to provide guidance as to how fisheries law will beapplied in practice, by establishing a consistent and transparent framework fordecision-making to achieve the objective of providing for utilisation ofNew Zealand's QMS species while ensuring sustainability. 3. The metrics specified in the [HSS] are to be treated as defaults: i.e.they should be applied in most situations. Where proposed managementoptions depart from the [HSS], they must be justified in terms of the particularcircumstances that warrant such departure.[133] The Judge held that the HSS did represent best practice in relation toprobability and was therefore the best available information.83 Mr Scott submittedthat this finding was an error because the HSS was not "information", much less "thebest available information" for the purposes of s 10(a). We do not accept thesesubmissions.[134] "Information" is defined in s 2(1) of the Fisheries Act as including:(a) scientific, customary Māori, social, or economic information; and(b) any analysis of any such information[135] The "best available information" is also defined in s 2(1), as "the bestinformation that, in the particular circumstances, is available without unreasonablecost, effort, or time".[136] Mr Scott relied on the dictionary definition of information as "facts providedor learned about something or someone".84 He submitted that the HSS (and theOperational Guidelines) are statements of policy and practice which are used in lightof information that is obtained. They are not, themselves, "information" in terms ofs 10. In our view, the meaning of "information" in the Fisheries Act is not so narrow.In ordinary parlance, information is a word of wide import. For example, other82 HSS, above n 5.83 Judgment under appeal, above n 4, at [156].84 Mr Scott cited the Oxford English Dictionary for this definition but it is unclear which edition.dictionary definitions include "[k]nowledge communicated concerning someparticular fact, subject or event, ".85 In the context of the Fisheries Act the word isclearly intended to have a similarly wide import. It is not tenable to argue that astatement of best practice and the reasons for it are not information for the purposesof s 10(a).[137] We see no significance in the fact that Forest & Bird's witnesses referred tothe HSS as a statement of best practice rather than the "best available information".Whether the HSS represented best practice was a question of fact for the Judge todetermine on the basis of the expert evidence. Whether it was the best availableinformation was a question of law and, self-evidently, not a matter on which any expertwitness could properly express a view.[138] We turn to Mr Scott's submission that the HSS did not represent best practice.This submission rested on the evidence of Fisheries Inshore's Executive Chair,Mr Lawson, who said:37 The HSS is therefore a policy document of the Ministry's seeking toprovide guidance to the Minister on how to approach the biologicalconsiderations and uncertainties relevant to TAC setting under section13. It also sets default criteria and is not intended to apply if there isbetter fisheries specific information that can be used.38 While the seafood industry understands and agrees with the objectivesof the HSS, it has never adopted this policy document. It is useful tohave default criteria to be used where good information about afishery is not available. However, it was prepared over ten years priorto the decision at issue in these proceedings and was supposed to beupdated over five years ago. As such, Fisheries Inshore hasmaintained throughout the consultation process that it is notappropriate to be using these default rules in the case of the tarakihifishery where we now have a new and accepted stock assessmentavailable.39 We accept however that it was ultimately a question for the Ministerto determine whether he considered it appropriate to use the defaultstandard contained in the HSS or to use the more fisheries specificinformation which Fisheries Inshore asked him to take into account.85 Oxford English Dictionary (online ed, Oxford University Press, updated to December 2022),definition of "information".[139] Mr Scott submitted that the Judge had failed to take account of Mr Lawson'sevidence in finding that the HSS represented best practice and the best availableinformation. That submission is not supportable. The Judge specifically referred toMr Lawson's evidence.86 She said, however, that it was not clear from his evidencehow the tarakihi stock assessment would provide a basis for departing from the HSSguidance on probability levels.87 This was a reasonable conclusion to reach. Mr Scottdid not suggest any basis on which the Judge might have drawn a different conclusionfrom Mr Lawson's evidence.[140] The Judge had before her the evidence of two experts that the HSS stillrepresented best practice, notwithstanding its age. Dr Mace, who was involved indeveloping the HSS, said that when it was published in 2008 it represented bestinternational practice. She acknowledged that it had not been revised since then butexplained that this was partly because it still largely represents international bestpractice. Ms Goddard, a marine consultant and advocate, also said that the HSS stillrepresented best practice. There was no evidence to the contrary.[141] Mr Scott criticised the Judge for saying that Fisheries Inshore had not providedbetter information when the question whether the HSS was the best availableinformation was not an issue in the case. For the reasons already discussed, we do notaccept that submission. Whether the HSS represented current best practice was plainlyin issue on the evidence. Whether it was the best available information for thepurposes of s 10(a) was a question of law that arose from that evidence. In any event,we read the Judge's comments as simply identifying the information available to her,not as imposing any evidential burden on Fisheries Inshore.86 Judgment under appeal, above n 4, at [149]–[150].87 At [151].Did the Judge err in finding that the HSS was an implied mandatory consideration?[142] The Judge referred to the recognised test,88 as it was discussed by this Court inCREEDNZ Inc v Governor-General:89 It is a familiar principle, commonly accompanied by citation of a passagein the judgment of Lord Greene MR in Associated Provincial Picture HousesLtd v Wednesbury Corporation "If, in the statute conferring the discretion,there is to be found expressly or by implication matters which the authorityexercising the discretion ought to have regard to, then in exercising thediscretion it must have regard to those matters". More recently in Secretaryof State for Education and Science v Tameside Borough Council Lord Diplock put it as regards the statutory powers of a Minister that " it isfor a court of law to determine whether it has been established that in reachinghis decision he had directed himself properly in law and had inconsequence taken into consideration the matters which upon the trueconstruction of the Act he ought to have considered "What has to be emphasised is that it is only when the statute expressly orimpliedly identifies considerations required to be taken into account by theauthority as a matter of legal obligation that the Court holds a decision invalidon the ground now invoked. It is not enough that a consideration is one thatmay properly be taken into account, nor even that it is one which many people,including the Court itself, would have taken into account if they had to makethe decision. Questions of degree can arise here and it would be dangerous to dogmatise.But it is safe to say that the more general and the more obviously importantthe consideration, the readier the Court must be to hold that Parliament musthave meant it to be taken into account. [143] The Judge went on immediately to cite from McGechan J's decision inTaiaroa v Minister of Justice.90 Under consideration in that case was a pleading thatMcGechan J described as one of "'mistake of fact', albeit coupled with associatedinvocation of resulting 'irrelevant considerations'".91 His Honour observed:92Essentially, if a decision maker ignores or acts in defiance of anincontrovertible fact, or an established and recognised body of opinion, whichplainly is relevant to the decision to be made - in a sense that Parliament musthave intended it to be taken into account - the decision may be invalidated.Two points, however, require emphasis. First, the fact "must be an establishedone or an established and recognised opinion"; and "it cannot be said to be amistake to adopt one of two different points of view of the facts, each of whichmay reasonably be held" Second, the fact or opinion must have been88 Judgment under appeal, above n 4, at [153].89 CREEDNZ Inc v Governor-General [1981] 1 NZLR 172 (CA) at 182–183 (citations omitted).90 Judgment under appeal, above n 4, at [154], citing Taiaroa v Minister of Justice HC WellingtonCP99/94, 4 October 1994 at 34.91 At 42.92 At 42 (citations omitted). This passage was cited in Judgment under appeal, above n 4, at [155]."actually or constructively within the knowledge of the Minister or theMinistry", [144] The Judge made the following findings:93[156] The HSS is an "established and recognised body of opinion".Notwithstanding Fisheries Inshore's view that it is not appropriate to usethe HSS default guidelines for tarakihi, as I have found and as the Ministeracknowledges, the HSS remains best international practice and the bestavailable information. Fisheries Inshore does not advance any equallycredible body of scientific opinion as described in Taiaroa.[157] I do not accept the Minister's submission that the probability rangewas not a mandatory relevant consideration because the Minister's decisiondid not relate to whether the stock had in fact been fully rebuilt. It is correctthat a stock will not be declared to be rebuilt until it can be determined thatthere is at least a 70 per cent probability that the target has been achieved.As the HSS Operational Guidelines acknowledge, if the initial rebuilding planis underachieved or overachieved, it may need to be revised prior to thetermination of the timeframe initially set. That might be necessary, forexample, where there is an updated stock assessment. But that is differentfrom saying that a 70 per cent probability of rebuild to the target is onlyrelevant at the end of the rebuild, which is how I understand the Minister'ssubmission. As Forest & Bird notes, the HSS Operational Guidelines statethat the minimum standard for a rebuilding plan is that 70 per cent of projectedtrajectories will achieve the target, and, as I discussed in relation to the secondcause of action, the setting of the probability is an integral part of settingthe TAC.[145] Mr Scott submitted that, having correctly identified the relevant test as statedin CREEDNZ, the Judge failed to apply that test and instead, wrongly, applied the testin Taiaroa, which was directed towards mistake of fact. Even leaving that aspect aside,Mr Scott argued that, in any event, application of the CREEDNZ test would not haveresulted in the HSS being treated as a mandatory consideration.[146] We do not accept that the Judge applied the wrong test. It is evident thatthe Judge treated the statements in Taiaroa as assisting in determining whetherthe HSS was the best available information. We see no error in that. We accepthowever (and Ms Gepp acknowledged), that the Judge reasoned directly from the factof the HSS being the best available information to the conclusion that it was amandatory consideration. There was no explicit explanation for the implication thatthe HSS was a factor the Minister was required to consider. Nevertheless, we do notaccept Mr Scott's submission that there was no basis for that implication.93 Judgment under appeal, above n 4.[147] Whether the HSS was, impliedly, to be taken into account in making thedecision did not depend on the HSS being specifically in Parliament's contemplation.Section 10(a) required the Minister to base decisions on the best available information,implying that Parliament intended for whatever information is the best availableinformation at the time a decision is made to be taken into account. Therefore,the Judge was right to proceed on the basis that if the HSS was the best availableinformation when the 2019 decision was made, it was required to be taken intoaccount.[148] Mr Scott submitted that it was significant that the HSS was not developed untilsome 12 years after the introduction of the Fisheries Act, and that no reference to itwas included when s 13 was amended in 2008.94 For the reason just given, we do notsee these points as helpful. Prior to the HSS being introduced in 2008 other materialwould have been the best available information. It would have been that informationwhich was required to be taken into account and in the future other, different, materialmay be the best available information. Parliament cannot have intended there to belegislative changes whenever recognised scientific best practice changes.[149] We therefore conclude that the Judge did not err in her conclusion that the HSSwas a relevant consideration that ought to have been taken into account. As Ms Geppacknowledged, this did not mean that the Minister was bound to apply the 70 per centprobability; the HSS specifications are stated only to be default positions. But itshould have been considered and, as acknowledged by all the parties, it was not.[150] Given this conclusion, we find it unnecessary to go on to considerthe Operational Guidelines as a relevant consideration.94 The Fisheries Act 1996 Amendment Act 2008, s 4(1), introduced s 13(2A), which addressed thesituation arising in Antons Trawling, above n 81, where the level of stock required to produce themaximum sustainable yield could not reliably be estimated using the best available information.Conclusions and result[151] The effect of our conclusions on Issue 1 can be summarised as:(a) When setting the TAC under s 13, the Minister is required to determinethe "period appropriate to the stock" by reference solely to the scientificfactors specified in s 13(2)(b)(ii), and separately from the way and rateof rebuild. It is, however, not necessary for the Minister to decide onthe "period appropriate to the stock" before determining the "way inwhich and rate at which" the stock is moved towards MSY, thoughdoing so is likely to be more practical.(b) In deciding the "period appropriate to the stock" under s 13(2)(b)(ii),the Minister is not entitled to take social, cultural or economic factorsinto account. Those factors are relevant only to the way and rate of therebuild.(c) The IRP was an irrelevant consideration in identifying the "periodappropriate to the stock" under s 13(2)(b)(ii).[152] On Issue 2, we have concluded that the HSS does specify a default probabilitystandard for rebuild of 70 per cent and this standard, and the reasons for it, wereimplied mandatory considerations in setting the 2019 TAC.[153] Therefore:(a) The appeal is dismissed.(b) The cross-appeal is dismissed.[154] As to costs, Fisheries Inshore, Te Ohu and the Minister must pay Forest & Birdcosts for a standard appeal on a band A basis, with second counsel certified, and usualdisbursements.GODDARD JTable of ContentsPara noIntroduction [155]Issues on appeal [164]Fisheries Act: relevant provisions [168]The HSS and the Operational Guidelines [185]The HSS [185]Operational Guidelines [197]What is the Minister required to do when determining TAC unders 13(2)(b)?[207]Setting the provision in context [207]Restoring the stock to BMSY "within a period appropriate to thestock"[221]Did the Minister err in his approach to the "period appropriate tothe stock"?[242]Decision paper prepared by Fisheries New Zealand [242]The Minister's evidence [251]Did the Minister give adequate consideration to whether therebuild would occur within a timeframe appropriate to thestock?[258]Issue 2: Did the Minister err by failing to take into accountprovisions of the HSS or the Operational Guidelines relating to a70 per cent probability of rebuild?[260]Were the HSS or Operational Guidelines mandatory relevantconsiderations?[260]Were the HSS or Operational Guidelines "best information"for the purpose of s 10?[270]Did the HSS provide for rebuilding plans to be based on70 per cent probability of success?[279]Conclusion on Issue 2 [284]Conclusion and practical consequences [285]Introduction[155] The purpose of the Fisheries Act is to provide for the utilisation of fisheriesresources while ensuring sustainability.95 It sets out various mechanisms for pursuingthat goal. Under pt 3 of the Act, the Minister of Fisheries may set "sustainabilitymeasures" for fisheries stocks. For a fisheries stock that is subject to the quota95 Fisheries Act, s 8(1).management regime provided for in the Act, one sustainability measure that must bedetermined by the Minister from time to time is the TAC for that stock.96[156] Tarakihi is a quota management stock. It is a valuable stock commercially, andis important to customary and recreational fishers. In 2018, and again in 2019,the Minister made decisions setting the TAC for the East Coast tarakihi stock.97[157] The TAC for a stock is set with a view to managing the stock at, or moving ittowards, a level that can produce the MSY. Assessments of the East Coast tarakihistock in 2018 and 2019 confirmed that the stock was significantly below that level.So the Minister was required to make a decision under s 13(2)(b) of the Act settinga TAC that would enable the stock to be restored to, or above, that level. In 2018, andagain in 2019, the Minister reduced the TAC for East Coast tarakihi with a view toenabling the stock to recover.[158] Forest & Bird considered that the TAC reductions determined by the Ministerwere insufficient to enable the stock to recover within an appropriate timeframe, withan appropriate level of confidence. Forest & Bird brought judicial review proceedingschallenging the decision made by the Minister under s 13(2) of the Act in 2019 inrelation to East Coast tarakihi (the 2019 decision). Before the High Court thatchallenge succeeded on a number of grounds.98[159] An industry body, Fisheries Inshore appeals from that judgment. Te Ohusupports the appeal. The Minister does not seek to uphold his original decision, butfiled a cross-appeal concerning the interpretation of s 13(2)(b). The Minister'sinterpretation argument is not strictly speaking a cross-appeal, as the Minister does notcontend for a different outcome from that reached in the High Court.99 But it wasdescribed in that way before us, and I am content to use that label in this judgment.96 Section 13.97 The East Coast tarakihi stock represents the majority of the tarakihi catch in New Zealand.It comprises all or part of the quota management areas known as TAR 1, TAR 2, TAR 3 and TAR 7which are found along the East Coast of New Zealand and the eastern part of the Cook Strait.98 Judgment under appeal, above n 4.99 See Arbuthnot v Chief Executive of the Department of Work and Income [2007] NZSC 55, [2008]1 NZLR 13 at [16] and [25]; and Independent Fisheries Ltd v Minister for Canterbury EarthquakeRecovery [2013] NZSC 35, [2013] 2 NZLR 397 at [2]–[7].[160] Courtney J has concluded that the appeal should be dismissed. I take a differentview. I do not consider that the Minister's 2019 decision was inconsistent with thestatutory scheme in any material respect that would justify setting it aside.[161] My conclusion reflects a different understanding of the requirements thatthe Act prescribes for decisions by the Minister under s 13(2)(b). I am not persuadedthat the Minister failed to consider any of the matters that he was required to considerin order to make a lawful decision consistent with the statutory scheme, or that he tookinto account any irrelevant considerations.[162] The Act provides for decisions about TACs to be made by a Minister becausedecisions about the timeframe over which a depleted stock will be restored to a levelconsistent with MSY involve difficult trade-offs between the longer-term economicand environmental benefits from a swift recovery of stock levels, and the shorter termsocial, cultural and economic impact of large reductions in the TAC for a stock.These trade-offs are quintessentially political decisions, to be made after consideringthe best available scientific information about the stock and the views of thecommunities and stakeholders whom the Minister is required to consult. There isabundant room for reasonable disagreement about such decisions. The criticisms ofthe 2019 decision advanced by Forest & Bird go to whether the Minister struck theright balance: a matter for which he is politically accountable. They do not in my viewcall into question the lawfulness of that decision.[163] The reasons for my conclusions are set out below. I agree with, and adopt withgratitude, Courtney J's summary of the background to the proceedings, the reasoningof the High Court, and the parties' submissions. I focus on what the Act requires ofthe Minister when setting a TAC under s 13(2)(b), and on the respects in which it wasclaimed that he failed to comply with those requirements.Issues on appeal[164] I begin by summarising, for ease of reference, the two issues identified by theparties to the appeal.[165] The first issue is whether the High Court erred in finding that when varyingthe TAC under s 13(2) to rebuild the East Coast stock, the Minister:(a) Must first assess the period of rebuild appropriate to the stock byreference only to the biological characteristics of the stock and anyenvironmental conditions affecting the stock and without consideringwhether the period could be lengthened due to the social, cultural, andeconomic impact of catch reductions referred to in s 13(3).100(b) Must then separately consider the way in which and rate at which thestock is moved to a level that can produce MSY as a distinct step(without considering the period of the rebuild), and that the social,cultural, and economic factors referred to in s 13(3) are only relevantto this second step.101(c) Was not permitted to consider the IRP when determining theappropriate period under s 13(2)(b)(ii), as it was an irrelevantconsideration under that subparagraph.102[166] The second issue concerns the Minister's approach to the probability of rebuildwithin a given period, and whether the Minister is required to expressly considerwhether to adopt or depart from a "default" probability of rebuild of 70 per cent.As explained in more detail below, the High Court found that a minimum probabilityof rebuild of 50 per cent is implicit in s 13(2)(b).103 That finding was not challengedbefore us. But the High Court also found that the Minister was required to expresslyconsider whether or not to adopt a probability of rebuild of 70 per cent on the basisthat this higher probability is contemplated by the HSS and Operational Guidelinesadopted by the Ministry, and this "best practice" guideline is a mandatory relevantconsideration for the Minister.104100 Judgment under appeal, above n 4, at [109].101 At [109].102 At [193] and [200].103 At [127].104 At [152]–[157].[167] The issue has two components:(a) Does the HSS specify a 70 per cent default probability of rebuild(and reasons for that default probability) that is relevant to rebuildingplans relating to stocks below the "soft limit" identified in the HSS?(b) Was the 70 per cent probability of rebuild and the reasons for thatprobability specified as the default probability in theOperational Guidelines (and, if the answer to (a) is yes, the HSS) amandatory relevant consideration when the Minister decided to set theTACs for East Coast tarakihi in 2019?Fisheries Act: relevant provisions[168] As already mentioned, the purpose of the Act is to provide for the utilisation offisheries resources while ensuring sustainability. Those terms are defined asfollows:105ensuring sustainability means—(a) maintaining the potential of fisheries resources to meet the reasonablyforeseeable needs of future generations; and(b) avoiding, remedying, or mitigating any adverse effects of fishing onthe aquatic environmentutilisation means conserving, using, enhancing, and developing fisheriesresources to enable people to provide for their social, economic, and culturalwell-being.[169] Sustainability is concerned with utilisation over time: properly understood, thetwo concepts are complementary and are not in tension.106 But high levels ofutilisation in the short term will generally be inconsistent with sustainable utilisationof the resource over the longer term. The tension that the Act seeks to address isbetween unsustainably high levels of short-term utilisation of a resource and a longerterm (sustainable) approach to utilisation of that resource.105 Fisheries Act, s 8(2).106 The definition of "utilisation" refers to conserving fisheries resources. But "conserving" is definedin s 2(1) to mean "the maintenance or restoration of fisheries resources for their future use"(emphasis added): so this concept is also focused on the use of the relevant resources.[170] Section 9 sets out environmental principles that the Minister (and othersexercising powers under the Act) must take into account:9 Environmental principlesAll persons exercising or performing functions, duties, or powersunder this Act, in relation to the utilisation of fisheries resources orensuring sustainability, shall take into account the followingenvironmental principles:(a) associated or dependent species should be maintained abovea level that ensures their long-term viability:(b) biological diversity of the aquatic environment should bemaintained:(c) habitat of particular significance for fisheries managementshould be protected.[171] There was no claim that the Minister failed to take into account relevantenvironmental principles when he made the 2019 decision.[172] Section 10 sets out information principles that must be taken into account bythe Minister and other decision-makers:10 Information principlesAll persons exercising or performing functions, duties, or powersunder this Act, in relation to the utilisation of fisheries resources orensuring sustainability, shall take into account the followinginformation principles:(a) decisions should be based on the best available information:(b) decision makers should consider any uncertainty in theinformation available in any case:(c) decision makers should be cautious when information isuncertain, unreliable, or inadequate:(d) the absence of, or any uncertainty in, any information shouldnot be used as a reason for postponing or failing to take anymeasure to achieve the purpose of this Act.[173] "Information" is defined to include:107(a) scientific, customary Māori, social, or economic information; and(b) any analysis of any such information[174] "Best available information" is defined as the "best information that, in theparticular circumstances, is available without unreasonable cost, effort, or time".108[175] I return to s 10 when I discuss the second issue below at [260]–[284]. For now,I simply note that s 10 requires the stated principles to be taken into account.The principles are high-level principles about the approach to decision-making underthe Act, which recognise that in this domain the available information about fisheriesresources and social and economic factors is almost invariably incomplete anduncertain. Section 10 requires decision-makers to adopt an approach which paysappropriate attention to the incompleteness and uncertainty of information relating tofisheries.[176] Part 3 of the Act is concerned with sustainability measures. Section 11 sets outin some detail the matters that the Minister must take into account when setting orvarying sustainability measures:11 Sustainability measures(1) The Minister may, from time to time, set or vary any sustainabilitymeasure for 1 or more stocks or areas, after taking into account—(a) any effects of fishing on any stock and the aquaticenvironment; and(b) any existing controls under this Act that apply to the stock orarea concerned; and(c) the natural variability of the stock concerned.(2) Before setting or varying any sustainability measure under subsection(1), the Minister shall have regard to any provisions of—(a) any regional policy statement, regional plan, or proposedregional plan under the Resource Management Act 1991; and107 Fisheries Act, s 2(1) definition of "information".108 Section 2(1) definition of "best available information".(b) any management strategy or management plan under theConservation Act 1987; and(c) sections 7 and 8 of the Hauraki Gulf Marine Park Act 2000(for the Hauraki Gulf as defined in that Act); and(ca) regulations made under the Exclusive Economic Zone andContinental Shelf (Environmental Effects) Act 2012; and(d) a planning document lodged with the Minister of Fisheries bya customary marine title group under section 91 of the Marineand Coastal Area (Takutai Moana) Act 2011—that apply to the coastal marine area and are considered by theMinister to be relevant.(2A) Before setting or varying any sustainability measure under this Part ormaking any decision or recommendation under this Act to regulate orcontrol fishing, the Minister must take into account—(a) any conservation services or fisheries services; and(b) any relevant fisheries plan approved under this Part; and(c) any decisions not to require conservation services or fisheriesservices.(3) Without limiting the generality of subsection (1), sustainabilitymeasures may relate to—(a) the catch limit (including a commercial catch limit) for anystock or, in the case of a quota management stock that issubject to section 13 or section 14, any total allowable catchfor that stock:(b) the size, sex, or biological state of any fish, aquatic life, orseaweed of any stock that may be taken:(c) the areas from which any fish, aquatic life, or seaweed of anystock may be taken:(d) the fishing methods by which any fish, aquatic life, orseaweed of any stock may be taken or that may be used in anyarea:(e) the fishing season for any stock, area, fishing method, orfishing vessels.(4) The Minister may,—(a) by notice in the Gazette, set or vary the catch limit (includingthe commercial catch limit) for any stock not within the quotamanagement system:(b) implement any sustainability measure or the variation of anysustainability measure, as set or varied under subsection(1),—(i) by notice; or(ii) by recommending the making of regulations undersection 298.(5) Without limiting subsection (4)(a), when setting or varying a catchlimit (including a commercial catch limit) for any stock not within thequota management system, the Minister shall have regard to thematters referred to in section 13(2) or section 21(1) or both thosesections, as the case may require.(6) A notice under subsection (4)(b)(i) is secondary legislation (see Part 3of the Legislation Act 2019 for publication requirements).[177] The matters that the Minister is expressly required to have regard to includespecified planning documents prepared under the Act and under other statutes. The listdoes not include the HSS or the Operational Guidelines: those documents are notcontemplated by, or referred to in, the Act. As discussed below, in circumstanceswhere Parliament has expressly identified a range of relevant planning documents thatmust be taken into account some caution is required before finding that other planningdocuments are mandatory relevant considerations that Parliament must have intendedthe Minister to consider as a pre-condition to making a lawful decision. Imposingsuch a requirement implicitly, despite omitting it from the detailed list in s 11, wouldbe a surprising and unhelpful approach to framing legislation which a court should beslow to attribute to the legislature.[178] Section 12 provides for broad consultation in relation to decisions onsustainability measures:12 Consultation(1) Before doing anything under any of sections 11(1), 11(4), 11A(1),13(1), 13(4), 13(7) , 14(1), 14(3), 14(6), 14B(1), 15(1), and 15(2) orrecommending the making of an Order in Council under section 13(9)or section 14(8) or section 14A(1), the Minister shall—(a) consult with such persons or organisations as the Ministerconsiders are representative of those classes of persons havingan interest in the stock or the effects of fishing on the aquaticenvironment in the area concerned, including Māori,environmental, commercial, and recreational interests; and(b) provide for the input and participation of tangata whenuahaving—(i) a non-commercial interest in the stock concerned; or(ii) an interest in the effects of fishing on the aquaticenvironment in the area concerned—and have particular regard to kaitiakitanga.(2) After setting or varying any sustainability measure, or after approving,amending, or revoking any fisheries plan, the Minister shall, as soonas practicable, give to the parties consulted in accordance withsubsection (1) reasons in writing for his or her decision.(3) This section does not apply in respect of emergency measures undersection 16.[179] Section 13, which is at the heart of this appeal, provides for decisions bythe Minister setting or varying the TAC for each quota management stock:13 Total allowable catch(1) Subject to this section, the Minister shall, by notice in the Gazette, setin respect of the quota management area relating to each quotamanagement stock a total allowable catch for that stock, and that totalallowable catch shall continue to apply in each fishing year for thatstock unless varied under this section, or until an alteration of thequota management area for that stock takes effect in accordance withsections 25 and 26.(2) The Minister shall set a total allowable catch that—(a) maintains the stock at or above a level that can produce themaximum sustainable yield, having regard to theinterdependence of stocks; or(b). enables the level of any stock whose current level is belowthat which can produce the maximum sustainable yield to bealtered—(i) in a way and at a rate that will result in the stock beingrestored to or above a level that can produce themaximum sustainable yield, having regard to theinterdependence of stocks; and(ii) within a period appropriate to the stock, having regardto the biological characteristics of the stock and anyenvironmental conditions affecting the stock; or(c) enables the level of any stock whose current level is abovethat which can produce the maximum sustainable yield to bealtered in a way and at a rate that will result in the stockmoving towards or above a level that can produce themaximum sustainable yield, having regard to theinterdependence of stocks.(2A) For the purposes of setting a total allowable catch under this section,if the Minister considers that the current level of the stock or the levelof the stock that can produce the maximum sustainable yield is notable to be estimated reliably using the best available information, theMinister must—(a) not use the absence of, or any uncertainty in, that informationas a reason for postponing or failing to set a total allowablecatch for the stock; and(b) have regard to the interdependence of stocks, the biologicalcharacteristics of the stock, and any environmental conditionsaffecting the stock; and(c) set a total allowable catch—(i) using the best available information; and(ii) that is not inconsistent with the objective ofmaintaining the stock at or above, or moving the stocktowards or above, a level that can produce themaximum sustainable yield.(3) In considering the way in which and rate at which a stock is movedtowards or above a level that can produce maximum sustainable yieldunder subsection (2)(b) or (c), or (2A) (if applicable), the Ministershall have regard to such social, cultural, and economic factors as heor she considers relevant.(4) The Minister may from time to time, by notice in the Gazette, varyany total allowable catch set for any quota management stock underthis section by increasing or reducing the total allowable catch. Whenconsidering any variation, the Minister is to have regard to the mattersspecified in subsections (2), (2A) (if applicable), and (3).[180] The concept of "maximum sustainable yield" referred to in s 13 requires someelaboration. The term is defined as meaning, in relation to any stock, "the greatestyield that can be achieved over time while maintaining the stock's productivecapacity, having regard to the population dynamics of the stock and anyenvironmental factors that influence the stock".109109 Section 2(1) definition of "maximum sustainable yield".[181] The biomass of a stock is a measure of the size of a stock in units ofweight.110 The biomass that can produce MSY is referred to as BMSY. Maintaininga stock at BMSY requires the stock to be managed at or around the level giving thefastest population growth rate (where fish are abundant, and food resources areplentiful).[182] The long-term relationship between biomass and yield is shown in thefollowing diagram:111[183] A stock can be managed sustainably at levels above or below BMSY.But management of a stock around BMSY is optimal from a sustainability perspective110 Biomass can be expressed in several different ways. In particular, it may refer to the spawningbiomass, which is the total weight of sexually mature fish in a stock that spawn in a given year; orthe recruited biomass (also known as the exploitable or vulnerable biomass), which is the portionof a stock's biomass that is available to the fishery (that is, those fish above legal size limits).In the case of East Coast tarakihi, biomass reference points are usually expressed in terms ofspawning biomass.111 The diagram is taken from the Operational Guidelines, above n 5, at 2.as it maximises the long-term utilisation of the resource, and ensures intergenerationalequity. There are significant longer-term benefits from rebuilding a depleted stockto BMSY. But pursuing these longer-term benefits by reducing fishing in order torebuild the stock can have appreciable social, cultural and economic costs in theshorter term associated with a loss of revenue for fishing businesses during the rebuildperiod, including the potential for business closures, and reduced opportunities forcustomary and recreational fishing.[184] The Minister's decisions proceeded on the basis that BMSY for tarakihi is40 per cent of the "virgin" or unfished biomass (B0) for that stock. That estimate ofBMSY was not in issue in the present proceedings.The HSS and the Operational GuidelinesThe HSS[185] In October 2008 the Ministry of Fisheries issued the HSS. The HSS is a policystatement of best practice in relation to the setting of fishery and stock targets andlimits for fish stocks under the QMS, to be used by the Ministry when providing adviceto the Minister in relation to the setting of TACs. The way in which the Ministryenvisaged the HSS is explained in the following paragraphs taken from theintroduction:2. The Harvest Strategy Standard is a policy statement of best practice inrelation to the setting of fishery and stock targets and limits for fishstocks inNew Zealand's Quota Management System (QMS). It is intended to provideguidance as to how fisheries law will be applied in practice, by establishing aconsistent and transparent framework for decision-making to achieve theobjective of providing for utilisation of New Zealand's QMS species whileensuring sustainability. The Harvest Strategy Standard outlines the Ministry'sapproach to relevant sections of the Fisheries Act 1996 ("the Act"), and, assuch, will form a core input to the Ministry's advice to the Minister ofFisheries ("the Minister") on the management of fisheries, particularly thesetting of TACs under sections 13 and 14.3. The metrics specified in the Harvest Strategy Standard are to be treated asdefaults: i.e. they should be applied in most situations. Where proposedmanagement options depart from the Harvest Strategy Standard, they must bejustified in terms of the particular circumstances that warrant such departure.4. The Harvest Strategy Standard needs to be interpreted by reference to theGlossary of Terms (Appendix I) and the footnotes, both of which provideexplanation and elaboration of the statements made in the text, and are integralparts of the Harvest Strategy Standard. It is also essential to refer to thecompanion document entitled "Operational Guidelines for New Zealand'sHarvest Strategy Standard", which incorporates both technical andimplementation guidelines. The sections on technical guidelines providesuggested methods for calculating or approximating the biological referencepoints specified in the Harvest Strategy Standard, a more detailed basis andjustification for the metrics specified in the Harvest Strategy Standard, andelaboration on how the Harvest Strategy Standard should be implemented.The sections on implementation guidelines specify the respective roles andresponsibilities of fisheries managers, scientists and stakeholders in givingeffect to the Harvest Strategy Standard.5. The Harvest Strategy Standard itself specifies only a small number ofstandards per se, with most of the technical, interpretation and implementationaspects set out in the Operational Guidelines. It is intended that the corestandards will not change substantively in the short term, but should be subjectto review in a period not exceeding five years, based on the evolution offisheries plans and fisheries management strategies in New Zealand, and theevolution of international best practice. However, the Operational Guidelineswill continually evolve as new data, analyses and insights become available.6. In recognition of the differences in the nature and purpose of the HarvestStrategy Standard and the associated Operational Guidelines, the HarvestStrategy Standard has been approved by the Minister of Fisheries, while theOperational Guidelines will be periodically revised and approved by theMinistry's Chief Executive based on advice from the Chief Scientist and theNational Manager Fisheries Operations. The Chief Scientist will developrevisions to the technical sections of the Operational Guidelines incollaboration with stakeholders in periodic meetings of the Stock AssessmentMethods Working Group.[186] The HSS was approved by the Minister. But as already mentioned, it is not astatutory planning document contemplated by the Act. Parts 1 to 3 of the Act were inforce for some 12 years before the HSS was issued. Section 11(2) has been updatedto refer to other materials on a number of occasions, but no reference to the HSS hasbeen added.[187] The HSS describes its relationship to the relevant provisions of the Act in thefollowing way:112The Harvest Strategy Standard is a technical standard to be used by theMinistry of Fisheries ("the Ministry") when applying the legal provisions ofthe Fisheries Act 1996 ("the Act") for the purpose of providing advice to theMinister of Fisheries ("the Minister") related to the setting of TACs, andmanaging fisheries in accordance with the Minister's decisions. It does nothave legal force. Rather, it is a statement of how the Ministry intends to giveeffect to the obligations in the Act in the context of the practical requirements112 HSS, above n 5, at 22 (emphasis added).of managing fisheries. Sections 8, 10, 13, 14, 14A and 14B of the Act are ofparticular importance in this regard.[188] The HSS is discussed in more detail below. For now, I note that it is expressedto be intended as guidance for the Ministry in preparing advice for the Minister. It wasnot issued as guidance for the Minister when making decisions under the Act. Nor wasit issued as guidance to the public on how the Minister would approach decisions underthe Act. It was not intended to have any legal force.[189] The HSS expressly recognises that it is not the only relevant input whensetting TACs:113However, the Harvest Strategy Standard is not the only input into the settingof TACs. The Harvest Strategy Standard is concerned with the application ofbest practice in relation to the setting of fishery and stock targets and limits,but it is focussed on single species biological considerations and relateduncertainties, and includes only limited consideration of economic, social,cultural or ecosystem issues. Although it will form a core basis forthe Ministry's advice to the Minister, other considerations such asenvironmental principles (section 9) and economic, social, and cultural factorsalso play a role in the advice to, and decisions by, the Minister.[190] The HSS has three core elements:114(a) a specified target about which a fishery or stock should fluctuate;(b) a soft limit that triggers a requirement for a formal, time-constrainedrebuilding plan; and(c) a hard limit below which fisheries should be considered for closure.[191] The HSS explains that quota management stocks such as East Coast tarakihiare managed to fluctuate around a target based on MSY-compatible reference pointsor better with at least a 50 per cent probability of achieving the target.115113 At 3.114 At 7.115 At 7.[192] The HSS identifies a default soft limit that triggers a requirement for arebuilding plan of ½ BMSY or 20 per cent B0, whichever is higher.116 The HSS providesthe following guidance in relation to the soft limit, and rebuilding plans:117> The soft limit will be considered to have been breached when theprobability that stock biomass is below the soft limit is greater than 50%.> Stocks that have fallen below the soft limit should be rebuilt back to at leastthe target level in a time frame between Tmin and 2 * Tmin with an acceptableprobability.> Stocks will be considered to have been fully rebuilt when it can bedemonstrated that there is at least a 70% probability that the target has beenachieved118 and there is at least a 50% probability that the stock is above thesoft limit.[193] The second issue on appeal relates in part to the interpretation of the last ofthese bullet points, and the associated footnote. The Judge considered that this bulletpoint addresses the probability that a rebuilding plan will achieve its target by the endof the relevant timeframe.119 Fisheries Inshore says it is concerned with assessmentof whether the target has been met following a period of rebuilding. This issue isdiscussed at [260]–[284] below.[194] The HSS identifies a default hard limit at which fisheries will be consideredfor closure of ¼ BMSY or 10 per cent B0, whichever is higher. The hard limit will beconsidered to have been breached when the probability that stock biomass is belowthe hard limit is greater than 50 per cent. Fisheries that have been closed as a result ofbreaching the hard limit will not be re-opened until it can be demonstrated that thereis at least a 70 per cent probability that the stock has rebuilt to or above the level ofthe soft limit. The HSS explains that use of a probability level greater than 50 per cent116 At 7.117 At 8 (footnote omitted).118 Use of a probability level greater than 50% ensures that rebuilding plans are not abandoned toosoon; in addition, for a stock that has been depleted below the soft limit, there is a need to rebuildthe age structure as well as the biomass, and this may not be achieved by using a probability aslow as 50%.119 Judgment under appeal, above n 4, at [157].ensures that closed fisheries are not re-opened too soon, as this could quickly lead tothe need for reconsideration of closure.120[195] The HSS briefly explains how it is intended to assist in decision-making unders 13(2)(b) as follows:121The Harvest Strategy Standard assists in decision-making under this sectionby providing that depleted stocks should be rebuilt back to a target based onMSY-compatible reference points or better, and ensuring that the specified rateof rebuilding takes due account of relevant biological and environmentalfactors. In section 13(3), it is also stated that when deciding on the way andrate at which a stock is rebuilt ... "the Minister shall have regard to such social,cultural, and economic factors as he or she considers relevant". The HarvestStrategy Standard allows rebuilding plans to take these factors into account byenabling the adoption of targets "better than" MSY-compatible referencepoints, and permitting flexible rebuilding timeframes.[196] It is clear from this paragraph of the HSS that it was prepared on theunderstanding that flexible rebuilding timeframes are permitted in order to take intoaccount social, cultural and economic factors. I return to this below.Operational Guidelines[197] The HSS was issued with a companion document entitled "OperationalGuidelines for New Zealand's Harvest Strategy Standard", incorporating technical andimplementation guidelines. The HSS records that it specifies only a small number ofstandards, with most of the technical, interpretation and implementation aspects setout in the Operational Guidelines.122 It was envisaged that the Operational Guidelineswould be periodically revised and approved by the Ministry's Chief Executive basedon advice from the Chief Scientist and the National Manager Fisheries Operations.123The Operational Guidelines expressly note that they do not have the same status asthe HSS.124[198] The Operational Guidelines set out detailed technical guidelines for use withthe HSS. They include guidelines for recommended default proxies for BMSY as a120 HSS, above n 5, at 9.121 At 23 (footnote omitted).122 At 1.123 At 2.124 Operational Guidelines, above n 5, at 1.percentage of B0. For tarakihi, which is a low productivity stock, the default proxyfor BMSY is 40 per cent of B0.125 As noted above, this was the estimate of BMSY usedby the Minister when making the 2019 decision.[199] The Operational Guidelines note that fish populations fluctuate in size even inthe absence of fishing.126 Even if an MSY-compatible harvest strategy were to beimplemented exactly, biomass would continually fluctuate. BMSY is the average levelaround which the biomass is expected to fluctuate when a stock is fished on the basisof an MSY-compatible harvest strategy.127[200] The Operational Guidelines explain the philosophy that underpins setting softand hard limits, noting that they should be set well above extinction thresholds.Limits should be set at levels from which the stock is likely to recover in reasonabletime.128[201] The Operational Guidelines note that for both soft and hard limits, the ultimategoal is to ensure full rebuilding of the stock to the biomass target with an acceptableprobability. The guidance provided by the Operational Guidelines is that thisacceptable probability is 70 per cent. The reason given for requiring a probabilitylevel greater than 50 per cent is that a stock that has been severely depleted is likelyto have a distorted age structure (an over-reliance on juvenile fish, with relatively fewlarge, highly fecund fish). In such instances it is necessary to rebuild both the biomassand the age composition of the stock.129[202] The Operational Guidelines provide detailed guidance on rebuilding plans.They explain the concept of a rebuilding plan as follows:130A rebuilding plan consists of the rebuild target, the expected timeframe forrebuilding and a minimum acceptable probability of achieving the rebuild,together with a set of management actions that will achieve the desiredrebuild.125 At 8.126 At 8.127 At 8–9.128 At 9–10.129 At 10.130 At 11.[203] I note in passing that this description of the content of a rebuilding plan makesno reference to the rate of rebuild. As I explain below, that is because rate of rebuildis implicit in the expected timeframe for the rebuild: they are two sides of the samecoin, not separate matters that can be determined independently of each other.[204] The Operational Guidelines also discuss in some detail the setting oftimeframes for rebuilding stocks. The paragraphs that are relevant to Forest & Bird'sargument that the Minister failed to have regard to default rules concerning probabilityof rebuild read as follows:131The setting of timeframes for rebuilding stocks needs to take into account theinterdependence of stocks, the biological characteristics of the stock, anyenvironmental conditions affecting the stock and the economic, social andcultural factors relevant to fisheries on the stock in question. Another relevantissue is the comprehensiveness and reliability of the available information onthese factors and on stock status.The Act requires that relevant economic, social and cultural factors be takeninto account in deciding upon the way and rate at which a stock is rebuilt tothe target level. In the case of stocks with significant allocations to more thanone sector (greater than about 20% of the TAC), there may be considerabledisagreement about timeframes for rebuilding. Where a stock is virtuallyexclusively allocated to one sector, the timeframe selected may be morereflective of the interests of that particular sector.The Harvest Strategy Standard specifies that where the probability that a stockis at or below the soft limit is greater than 50%, the stock should be rebuilt tothe target within a time period between Tmin and 2*Tmin (where Tmin is thetheoretical number of years required to rebuild a stock to the target with zerofishing mortality).Mathematical projection models will generally need to be developed toestimate Tmin and to compare and contrast alternative rebuilding strategies.These will usually be probabilistic models that incorporate uncertainty in theprojections. The minimum standard for a rebuilding plan is that 70% ofthe projected trajectories will result in the achievement of a target based onMSY-compatible reference points or better within the timeframe of Tmin to2*Tmin. This equates to a probability of 70% that the stock will be above thetarget level at the end of the timeframe. A stock will not be declared to berebuilt, and therefore absolved from further rebuilding, until it can bedetermined that there is at least a 70% probability that the target has beenachieved. This means that if the initial rebuilding plan isunderachieved/overachieved, it may need to be revised prior to the terminationof the timeframe initially set. This may result in a more restrictive, or morelenient, rebuilding plan as time progresses.131 At 11–12.Tmin reflects the extent to which a stock has fallen below the target, thebiological characteristics of the stock that limit the rate of rebuild, and theprevailing environmental conditions that also limit the rate of rebuilding.Allowing a rebuilding period up to twice Tmin allows for some element ofsocio-economic considerations when complete closure of a fishery couldcreate undue hardships for various fishing sectors and/or when the stock is anunavoidable bycatch of another fishery. The probability of rebuild should beincreased where the information is highly uncertain or where multiple sectorshave significant interests in the fishery.[205] This passage expressly recognises that allowing a rebuilding period greaterthan Tmin is intended to allow socio-economic considerations to be taken into account.I return to this below.[206] In this passage, and at other points, the Operational Guidelines clearly providethat where a soft limit for a stock has been breached, a rebuilding plan should beadopted that has a 70 per cent probability of achieving its target stock level at the endof the timeframe for the plan.132What is the Minister required to do when determining TAC under s 13(2)(b)?Setting the provision in context[207] It was common ground before us that at the time the 2019 decision was made,it was open to the Minister to vary the TAC that had been set for East Coast tarakihiin 2018, pursuant to s 13(4) of the Act. It was also common ground that the estimatedlevel of the East Coast tarakihi stock was significantly below BMSY. Indeed it wasbelow the soft limit specified in the HSS, with the result that the Ministry could beexpected to recommend to the Minister that he adopt a formal, time-constrainedrebuilding plan.[208] Although s 13(4) simply provides for the Minister to "have regard to" thematters specified in s 13(2), I do not read that as permitting the Minister to depart fromthe decision-making approach required by s 13(2) when making a decision unders 13(4). A decision on varying the TAC must be made in the same manner as an initialdecision to set the TAC under s 13(1) and (2). But I pause to note that s 13(4) providesfor the Minister to have regard to the matters specified in subsection (3) — that is,132 See for example at 28.social, cultural and economic factors — when considering a variation. I return to thisbelow.[209] The Minister was expressly required by the Act to make his decision takinginto account the environmental principles specified in s 9, and the informationprinciples specified in s 10. The Minister was required to have regard to the provisionsof the planning documents specified in s 11(2) and (2A). Before varying the TACunder s 13(4) the Minister was required to undertake consultation, and provide forinput and participation of tangata whenua, as prescribed in s 12.[210] In light of those principles, and the consultation required by the Act,the Minister was then required to set a TAC that:133(b) enables the level of any stock whose current level is below that whichcan produce the maximum sustainable yield to be altered—(i) in a way and at a rate that will result in the stock being restoredto or above a level that can produce the maximum sustainableyield, having regard to the interdependence of stocks; and(ii) within a period appropriate to the stock, having regard to thebiological characteristics of the stock and any environmentalconditions affecting the stock; or[211] The estimated level of the East Coast tarakihi stock in 2019 was just that: anestimate, based on research and scientific analysis. Projections of the way in whichthe stock would change over time as a result of reductions in TAC were also estimates,generated using a model for the stock. Such estimates are uncertain, and inevitablythat uncertainty increases over time. Section 10 of the Act required the Minister totake all of these uncertainties into account in making his decision.[212] From a practical perspective, the Minister could approach a decision aboutwhether and how to vary the TAC in a number of ways. One approach would be toidentify a range of possible TAC reductions — for example, 10 per cent or 30 per centor 50 per cent — and model the likely results of such reductions over time. For eachpotential TAC reduction, modelling would provide information about the periodwithin which the stock would be likely to be restored to BMSY, and the probability133 Fisheries Act, s 13(2).attached to that estimate. For example, Fisheries New Zealand advised the Ministerthat a TAC reduction of 35 per cent would have a 50 per cent probability of achievingthe target of BMSY within 11 years. The Minister could then make a choice betweendifferent TAC reductions in light of the predicted consequences of those reductions.[213] Alternatively, the Minister could identify a period within which he sought toachieve the target of restoring the stock to BMSY, and the desired level of probabilityof achieving that result within that timeframe. The TAC reduction required to achievethat outcome could then be estimated using the model. The shorter the timeframe, andthe higher the desired level of probability of achieving BMSY within that timeframe,the greater the reduction in TAC would need to be.[214] As these examples of potential approaches to making the decision illustrate,decisions about the rate at which a stock will be restored are linked as a matter of logicand science to decisions about the timeframe within which that outcome will beachieved. They are two sides of the same coin. It is not possible to determine theperiod within which restoration to BMSY is to be achieved without also considering theway in which and rate at which the stock will be altered over that period, and theprobability of achieving the desired result at the end of that period.[215] These examples of potential approaches also highlight the nature of thetrade-offs that the Minister must consider in making the TAC decision. If the Ministerwishes to achieve the earliest possible rebuild, with the highest degree of confidence,the Minister can close the fishery by setting the TAC at zero.134 In the absence offishing, the stock will recover as fast as possible having regard to its biologicalcharacteristics and relevant environmental conditions. (This is the period describedas Tmin in the HSS.)135 However setting the TAC to zero would have significant social,cultural and economic consequences. For a major fishery such as East Coast tarakihi,the impact on the fishing industry and the people it employs is likely to be significant.The Minister's task is to determine whether those shorter-term (but potentiallysignificant) impacts should be mitigated by permitting some fishing: that is, by settingan above-zero TAC. The higher the TAC, the slower the rate of recovery and the134 Fisheries Act, s 13(5) expressly confirms that the Minister may set or vary any TAC at, or to, zero.135 HSS, above n 5, at 8, n 7.longer the period over which the recovery can be expected to take place. As the TACset by the Minister increases, the timeframe for recovery stretches out.[216] The same point can be made another way. Section 13(2)(b) and (4) requirethe Minister to make a single decision: what the new TAC should be. That singledecision determines the period and rate of rebuild. These are not independent matters,that can be determined separately. They are inextricably interlinked consequences ofa single decision. It is logically impossible to consider any given factor whendetermining the rate of rebuild, but not when determining the period of rebuild, asthese cannot be determined separately from each other. I return to this below.[217] The statutory scheme requires the Minister to set a TAC under s 13(2)(b) thatenables the level of the stock to be restored to BMSY over time. The Judge held thatthe Minister was required to identify a probability level for the rebuilding of the stockat the time of setting the TAC.136 That is plainly right: it is required by the languageof s 13(2)(b) ("will result") and the information principles which require uncertaintyto be taken into account. The Judge went on to find that the Minister's 2019 decisionadopted an approach with an approximately 50 per cent probability of achievement,and that it was not an error of law to adopt a TAC that had modelled a 50 per centprobability of achieving the target.137 The finding that it was not an error of law toproceed on the basis of a 50 per cent probability of achieving the target of BMSY wasalso in my view plainly right, having regard to the language of s 13(2)(b). It would beinconsistent with the statutory scheme to adopt a TAC that had a less than 50 per centprospect of enabling recovery of the stock to BMSY. Conversely, there is nothing inthe statute itself to indicate that a probability greater than 50 per cent of recoverywithin an appropriate period is required.[218] It was not suggested before us that the Minister's 2019 decision failed to meetthe requirement in s 13(2)(b)(i): that is, that it would enable the level of the East Coasttarakihi stock to be altered in a way and at a rate that would result in the stock beingrestored to or above BMSY, having regard to the interdependence of stocks.As Courtney J records at [41] of her judgment, the final advice paper prepared by136 Judgment under appeal, above n 4, at [127(a)].137 At [127(b)–(c)].Fisheries New Zealand set out four options, including the option ultimately chosen bythe Minister of a TAC reduction of 10 per cent combined with the measures in the IRP.Modelling of a TAC reduction of 10 per cent indicated a 50 per cent probability thatBMSY would be achieved in 25 years, and that it would take more than 30 years toreach that target with a 70 per cent probability.[219] The concern that underpins Forest & Bird's challenge to the 2019 decision isthat a TAC reduction of 10 per cent is expected to take a long time to achieve the targetof BMSY, even with a 50 per cent probability. Forest & Bird consider that the Ministershould have decided on a greater TAC reduction, in order to achieve the target earlierand with a greater degree of confidence.[220] A judicial review challenge founded on that concern confronts the obvioushurdle that the Act does not specify a maximum period within which the stock mustbe restored to BMSY, and does not specify a level of confidence with which that targetmust be achieved other than the implied requirement of at least a 50 per centprobability, as noted above.138 That is why Forest & Bird's challenge to the2019 decision could only be framed as a claim that the Minister failed to have regardto mandatory relevant considerations, or took into account irrelevant considerations,at specific points in the decision-making process.Restoring the stock to BMSY "within a period appropriate to the stock"[221] The first issue raised by Forest & Bird's challenge focuses on the phrase"within a period appropriate to the stock" in s 13(2)(b)(ii). Forest & Bird say (andthe Judge agreed) that the Minister was required to assess the period of rebuildappropriate to East Coast tarakihi under s 13(2)(b)(ii) of the Act before applyingsocial, cultural and economic factors to the determination of way and rate of rebuild.139[222] It became apparent in the course of argument that the parties understood thereference to "a period appropriate to the stock" in s 13(2)(b)(ii) in two different senses.The submissions of the parties other than Forest & Bird took this as a reference to the138 Some fisheries regulatory regimes in other jurisdictions do set a maximum time for rebuilding astock, but that is not the position under the Act.139 Judgment under appeal, above n 4, at [109].period within which the rebuild was expected to occur as a result of the Minister'sdecision. So for example if the Minister decided on a TAC reduction of 35 per cent,which was expected to rebuild the stock to BMSY within 25 years, the "period" referredto would be that 25-year period. The enquiry would then be whether that 25-yearrebuild period was appropriate to the stock.[223] The submissions of Forest & Bird, on the other hand, took this as a referenceto a maximum period of rebuild appropriate to the stock. The period within whichthe Minister's decision would result in a rebuild, which would turn on the level of TACset by the Minister, could then be any period equal to or less than (and thus, "within")that stock-appropriate maximum period.[224] The evidence of Ms Katrina Goddard, a marine conservation advocateemployed by Forest & Bird at the time the proceedings were commenced, emphasisedthat the HSS contemplates that if the soft limit has been breached, the stock should berebuilt to BMSY in a timeframe between Tmin and 2*Tmin with an acceptableprobability.140 Her evidence proceeded on the basis that the appropriate period for therelevant stock for the purpose of s 13(2)(b)(ii) was 2*Tmin (which, in the case oftarakihi, would be 10 years).[225] On Forest & Bird's approach, the Minister should have begun his analysisunder s 13(2)(b) by identifying the maximum period appropriate to the stock.He should then have determined a TAC that would achieve a rebuild within (that is, ina timeframe up to, but potentially less than) this maximum period. In determining themaximum period for a rebuild as a preliminary step, the Minister should have regardonly to the biological characteristics of the stock and any environmental conditionsaffecting the stock. The social and economic factors referred to in s 13(3) could notbe taken into account in determining the maximum period appropriate to the stock.They would come into play only in the second stage.[226] One difficulty with the two-stage approach contended for by Forest & Bird isthat this is not how s 13(2)(b) is structured. If the Minister was required to begin by140 See HSS, above n 5, at 8, set out above at [192].determining a maximum rebuild period, having regard only to the biologicalcharacteristics of the stock and any environmental conditions affecting the stock, onewould expect the Act to provide for this determination to be made as a preliminarystep before a decision was made about the TAC. A subsequent provision would thenrequire that the TAC be set to enable a rebuild within that maximum period. It wouldbe surprising and unhelpful legislative design to locate in subpara (ii) a preliminarystep which needed to be carried out before addressing the matters referred to insubpara (i).[227] It would also be surprising and unhelpful to provide for a mandatorypreliminary step in a subparagraph which forms part of a single sentence in the broaderparagraph, which can only be understood by referring to the objective set out in thestructurally prior (but, Forest & Bird say, procedurally subsequent) subparagraph.The division of para (b) into a chapeau and two subparagraphs appears to have beenmotivated by readability considerations, rather than by a structural distinction betweentwo separate decisions (with the first decision set out, unhelpfully, after the second).Subparagraph (ii) cannot be read in isolation, as Courtney J accepts at [64].The purpose for which a rebuild period must be determined is found in subpara (i), sothe purpose of the alteration within the period referred to in subpara (ii) can only beunderstood by reading the two subparagraphs together. To this I would add that thebiological characteristics of the stock and environmental conditions affecting the stockare also plainly relevant considerations when determining the way in which and rateat which the level of the stock will be altered: although these considerations arereferred to in subpara (ii), they are equally relevant to the matters referred to insubpara (i). The inference that the entire paragraph must be read as a whole,describing a composite requirement for the TAC to be set by the Minister, is in myview compelling.[228] Another difficulty with Forest & Bird's approach is that subpara (ii) specifiesmatters to which the Minister must have regard when determining the periodappropriate to the stock. On an orthodox approach to statutory interpretation it wouldbe an error of law for the Minister to fail to consider these matters. But equally, anorthodox reading of a provision expressed in this way is that other relevant mattersmay be taken into account: if Parliament required the Minister to consider only thosematters, one would expect the provision to say so.[229] The reference in s 13(2)(b)(ii) to "a period appropriate to the stock" (emphasisadded), rather than "the period appropriate to the stock" also tends to suggest that thelegislation does not envisage a single (maximum) period appropriate to the stock, butrather a period that is one of many possible periods that would be appropriate to thestock.[230] A reading of s 13(2)(b) as a coherent textual whole, in light of its place in thestatutory scheme and its purpose, leads in my view to the conclusion that:(a) The period referred to in subpara (ii) is the period of expected rebuildthat would result from the Minister's TAC decision, not a maximumperiod within which the (potentially shorter) expected rebuild periodmust fall.(b) That period must be appropriate to the stock: so the Minister needs toidentify the expected rebuild period associated with a proposed TACand consider whether that period is appropriate to the stock.(c) In considering whether the rebuild period is appropriate to the stock,the Minister must have regard to the biological characteristics of thestock and relevant environmental considerations.(d) However these are not the only matters that may be taken into accountin determining what the rebuild period should be.[231] I agree with Courtney J that in s 13(2)(b)(ii) the words "having regard to" donot indicate factors that the Minister may or may not treat as influential in the decision.I agree that the Minister is required to consider and act on those factors.141 But theseare not, and cannot be, the only matters that the Minister is permitted to take intoaccount when determining the rebuild period, as I explain below.141 Above at [68].[232] If the "period appropriate to the stock" referred to in s 13(2)(b)(ii) is a referenceto the period within which the rebuild is expected to occur, which may be more thanTmin in order to mitigate adjustment costs, it is immediately apparent that that periodcannot be set by reference only to the biological characteristics of the stock andenvironmental conditions affecting that stock. As counsel for Fisheries Inshoreand the Minister both emphasised, the only reason a rebuild period would exceed Tminis to take into account the social, cultural and economic factors referred to in subs (3).It would be a logical impossibility for the rate of rebuild to be determined by referenceto those factors, but not the expected period of rebuild, since as explained above theseare two sides of the same coin which flow inexorably (and inseparably) from thedetermination of the TAC.[233] Some further support for this reading is provided by s 13(3). The direction tothe Minister in s 13(3) to have regard to social, cultural and economic factors applieswhen considering the way in which and rate at which a stock is moved towards BMSYunder subs (2)(b). That makes sense if there is a single indivisible determination ofway, rate and associated period under subs (2)(b). If the Act required a separatedetermination of way, rate and rebuild period under subpara (i) one might haveexpected the reference to be to subs (2)(b)(i) alone.[234] Further support for this reading is also provided by s 13(4), which as notedabove requires the Minister's decision varying a TAC to be made having regard to thematters specified in subs (3). That requirement is framed on the basis that the social,economic and cultural factors referred to in subs (3) are relevant when the Ministermakes a decision on TAC, and thus on rebuild period and rebuild rate.[235] The High Court Judge was concerned that perpetually maintaining a stockbelow BMSY would be permissible if s 13(2)(b)(ii) was qualified by economicconsiderations.142 But this concern is misplaced. The TAC set by the Minister mustbe expected to enable the stock to rebuild to BMSY with a probability of at least50 per cent, within a period appropriate to the stock. The rebuild period can be142 Judgment under appeal, above n 4, at [92].extended beyond Tmin to mitigate transition costs. But rebuild must be more likelythan not: maintenance of the stock below BMSY is not permitted.[236] Courtney J suggests that the reference in the HSS and the scientific evidenceto an acceptable rebuild period between Tmin and 2*Tmin indicates that "scientificopinion makes some allowance for general social, cultural and economic factors inassessing what an appropriate period is".143 I have difficulty following thisproposition: it seems to me that what this indicates is that the HSS and the scientistswho gave evidence all recognise that socio-economic factors are relevant todetermining any rebuild period other than Tmin. If a decision about the rebuild periodis made disregarding socio-economic factors, there can never be a reason to choose aperiod greater than Tmin. Courtney J goes on to say that this:144 does not mean that, in selecting the appropriate period under s 13(2)(b)(ii),the Minister is free to make further allowance for social, cultural andeconomic factors specific to the case at hand under s 13(3). Those factors areproperly limited to assessing the way and rate of the rebuild.The two related difficulties with this proposition are:(a) As already explained, the way and rate of the rebuild are not separatefrom the period of rebuild. To decide one is to decide the other.To decide the TAC is to decide both.(b) The Minister can select a TAC that results in a rebuild period greaterthan Tmin only if the Minister takes into account social, economic andcultural factors, and decides how much weight to give those factors.The more weight, the greater the departure from Tmin. The less weight,the less the departure from Tmin. But if these factors are not in the mix,then the period chosen must necessarily be Tmin, not 1.5*Tmin or 2*Tminor 5*Tmin. And if those factors are in the mix, then the Judge was wrongto say they are irrelevant considerations when it comes to determiningan appropriate rebuild period.143 Above at [92], and see also the discussion at [87]–[91].144 Above at [92].[237] The legislative history does not in my view provide any real assistance on thisissue. The amendments made to s 13(2) in 1998, discussed by Courtney J aboveat [26], ensure that environmental factors are taken into account when considering theperiod of rebuild. It is perhaps worth noting that the explanatory note to theFisheries (Remedial Issues) Amendment Bill 1997 stated that the reference toenvironmental factors was being moved from subpara (i) to subpara (ii) because"the effects of changing environmental factors could well be relevant in consideringthe rate at which a stock size will change".145 That is, the note proceeds on the basisthat subpara (ii) is concerned with the rate of change, which it is, if subpara (ii) isreferring to the expected rebuild period, and the rate of change and period of changeare recognised as two sides of the same coin. The explanatory note would make littlesense if Parliament understood s 13(2)(b) in the manner contended for by Forest &Bird, as concerned only with a maximum period for rebuild and not with the rate ofchange that will result from the Minister's decision on TAC.[238] I agree with Courtney J that the authorities we were referred to in relation tos 13 are of little assistance in resolving the specific issues raised by this appeal.[239] In summary, it seems to me that both the text and the purpose of s 13(2)(b)indicate that where a stock is below BMSY, the Minister must set a TAC that is expectedto result in the level of the stock being restored to BMSY. The Minster needs to considerthe way in which and rate at which the stock will be expected to move towards BMSY,and the period within which it is expected that that target will be achieved. (For anygiven TAC, these can be modelled — with both rate and period being (inextricablylinked) outputs of the model.) A minimum probability of 50 per cent of achieving thetarget of BMSY is required. The period of rebuild associated with the chosen TAC levelmust be appropriate to the stock, having regard to its biological characteristics andrelevant environmental conditions. The rate and timeframe/period of rebuildassociated with the chosen TAC must also take into account relevant social, culturaland economic factors. Those factors may lead to a rebuild period greater than Tmin.[240] It follows that I consider that the High Court erred in finding that the Minister:145 Fisheries (Remedial Issues) Amendment Bill 1997 (97-1) (explanatory note) at ii.(a) Must first assess the period of rebuild appropriate to the stock byreference only to its biological characteristics and any relevantenvironmental conditions, and without considering whether the periodcould be lengthened due to social, cultural and economic effects ofcatch reductions referred to in s 13(3).146(b) Must then separately consider the way in which and rate at which thestock is moved to BMSY, with social, cultural and economic factorsrelevant only to this second step.147(c) Was not permitted to consider the IRP when determining theappropriate period referred to in s 13(2)(b)(ii).148[241] In light of this analysis, I turn to whether the Minister erred in his approach tothe TAC decision.Did the Minister err in his approach to the "period appropriate to the stock"?Decision paper prepared by Fisheries New Zealand[242] Fisheries New Zealand prepared a lengthy decision document for the Minister,which recorded that it was accompanied by full submissions on all of the proposals.The paper set out the statutory framework for the decisions to be made in relation tovarious fisheries, including the East Coast tarakihi stock. It set out an overview ofthe HSS, including the guidance the HSS provides that stocks that have fallen belowthe soft limit should be rebuilt back to at least the target level in a timeframe betweenTmin and 2*Tmin "with an acceptable probability". In the section of the decision paperconcerning East Coast tarakihi, Fisheries New Zealand advised the Minister that:When a stock declines below the soft limit a formal, time-constrained,rebuilding plan is recommended. The Harvest Strategy Standard recommendsthat a rebuilding plan should aim to restore the stock to, at least, the targetlevel of biomass within a timeframe of between Tmin (minimum timeframe toachieve rebuild to target in the absence of fishing) and 2*Tmin (twice the146 Judgment under appeal, above n 4, at [109].147 At [109].148 At [193] and [200].minimum timeframe), with a 50% probability. Tmin for tarakihi has beendetermined to be 5 years for a target of 40% SB0, [243] The paper noted that under current catch limits (that is, after the 2018 TACdecision) the stock was projected to reach BMSY in 35 years with a 50 per centprobability.[244] The paper outlined the four options summarised in Courtney J's judgmentabove at [41]. In relation to each option, the rebuild rate and timeframe wereidentified. In relation to the chosen option, the paper explained the rebuild rate andtimeframe as follows:The Industry Rebuild Plan proposes that the management actions outlined inthe plan will accelerate the rate of rebuild and have committed to a maximum20 year rebuild timeframe.Fisheries New Zealand notes there is uncertainty as to whether the IndustryRebuild Plan will deliver an accelerated rate of rebuild.In the absence of any additional management actions and solely taking intoaccount catch, the rebuild timeframe would be 25 years (5*Tmin) or 19 years(4.75*Tmin) for a target of 40% SB0 or 35% SB0 respectively.[245] The paper went on to outline the social and economic impacts of reductions inthe TAC for tarakihi.[246] The paper summarised the submissions received on the proposal to varythe TAC for East Coast tarakihi. It recorded that some submitters supported a fasterrebuild because the stock was below the soft limit and had been there for a long time.Some submitters, including Forest & Bird, preferred larger catch reductions to ensurea rebuild timeframe of 10 years "which aligns with the [HSS]". Fisheries New Zealandnoted that options 1 and 2, which provided for rebuild timeframes of 11 and 12 yearsrespectively, were considered by Fisheries New Zealand to be broadly consistent withthe HSS "while noting that it is a guideline, to which you are not bound".[247] The paper then analysed the factors that the Minister was required to take intoaccount under the Act. Reference was made to the biological characteristics of thestock and relevant environmental conditions. The paper noted, again, that projectionssuggested a 50 per cent probability of rebuilding to BMSY within five years in theabsence of fishing. A 50 per cent probability of reaching that target was consideredacceptable, "due to the natural variation caused by fluctuations in recruitment andenvironmental conditions". The paper expressly recorded that options 3 and 4 wereoutside the guidelines in the HSS in relation to the period for rebuild.Fisheries New Zealand said:Options 3 and 4 also step outside the guidelines in the Harvest StrategyStandard and deliver an initial rebuild rate that is between 4-5*Tmin, instead of2*Tmin. There is uncertainty whether the measures outlined in the IndustryRebuild Plan will lead to an expedited rebuild timeframe within the 20 yearhorizon proposed. Science modelling has indicated that increasing the age offish caught by one year will accelerate the rebuild, but it is difficult to predictto what extent the measures proposed by industry will achieve this.It is not common for Fisheries New Zealand to propose options that are outsideof the Harvest Strategy Standard, but Options 3 and 4 have been included inrecognition of the social, cultural and economic factors. These factors arerelevant to your decision making, and are not taken into account by theHarvest Strategy Standard.[248] Fisheries New Zealand's preferred options were either option 2 or option 4.If the Minister considered it a priority to rebuild the stock as quickly as possible, in atimeframe that most closely corresponded to the HSS, Fisheries New Zealandrecommended option 2. Alternatively, if the Minster considered that minimisingsocio-economic impacts on fishers, their families and regional communities was animportant factor to have regard to, then Fisheries New Zealand recommendedoption 4. Fisheries New Zealand expressly addressed this departure from the HSS asfollows:While the Harvest Strategy Standard is considered international best practice,and has rarely been deviated from in the past, the guidance outlined in it isonly part of what is required to be considered when making your decision.You are required to consider many factors, as mentioned above, and you mayconsider it is warranted to deviate from the Harvest Strategy Standard in thisinstance.[249] Fisheries New Zealand's advice to the Minister did not consider what amaximum acceptable rebuild period would be that was appropriate to this stock.But as explained above, I do not consider that this was required.[250] The advice paper clearly addressed the rebuild periods that would be associatedwith each of the four options. In relation to the selected option, option 4, it wasrecorded that the rebuild period would be between 4 and 5*Tmin. It was expresslyidentified that this was outside the period of 2*Tmin recommended in the HSS.The reasons for departing from the HSS were also explicitly identified.The Minister's evidence[251] The Minister swore an affidavit setting out the background to the decisions hemade about the East Coast tarakihi TAC in 2018 and 2019. He explained that in lightof the 2017 stock assessment carried out for East Coast tarakihi, which estimated stockwas 17 per cent of B0, it was necessary for him to reduce the TAC to enable the stockto move towards (or above) the level that could produce BMSY (which was taken to be40 per cent of B0). He then considered the way in which and rate at which he shouldseek to move East Coast tarakihi towards that level.[252] The Minister said that he understood that science advice suggested theEast Coast tarakihi stock would rebuild over a minimum five-year period in theabsence of fishing. He recognised that there was uncertainty in this assessment.He was aware the HSS suggested, as a guide, that a fishery should be rebuilt in up totwice this timeframe. A range of options for the rebuild period was consulted on withstakeholders, from 10 to 20 years. There were clear trade-offs between these rates."The shorter the rebuild time, the quicker the benefits of a rebuilt stock are availableto all users, but the larger the short-term socio-economic impact."[253] The Minister explained that he favoured a rebuild timeframe of 10 years.Fisheries New Zealand's advice was that a 55 per cent reduction in commercial catchfor East Coast tarakihi was required to provide a 50 per cent probability of rebuildwithin 10 years. The Minister says he was conscious that this was not a particularlyhigh probability. However, to rebuild with higher certainty would require even largerreductions. The Minister considered a 50 per cent probability to be reasonable giventhe status of the stock, the size of the rebuild required, and the socio-economic impactassociated with achieving a rebuild with greater certainty.[254] In 2018, the Minister decided on a phased approach to implement catchreductions. In the first year, from 1 October 2018, he decided to reduce the TAC byapproximately 20 per cent. The Minister recognised that this reduction would notrebuild the stock at his preferred rate without significant further measures. But itwould begin the rebuild process, and provide the industry with a short period to adjusttheir operations. The Minister considered that in the absence of any additionalmeasures, a further 35 per cent reduction in TACC would most likely be required in2019/2020.[255] The Minister went on to say that in making the 2019 decision, he carefullyconsidered the advice from Fisheries New Zealand, the views of submitters, the bestavailable scientific information and assessments of economic impacts, while alsotaking into account any uncertainty in the information presented.[256] In relation to the rebuild period, the Minister said:14946. The science advice indicated the further TAC and TACC reductionsin 2019 (alone) would have a 50% probability of rebuilding East Coasttarakihi within 25 years. However, in addition to the TAC and TACCcuts the Industry Rebuild Plan commits to a maximum rebuildtimeframe of 20 years. Although this is a longer time period than Ifavoured in 2018, and a departure from the HSS, I concluded that byworking in partnership with key industry participants, andacknowledging the innovative measures the government had eitherintroduced, or was seeking to introduce, this time frame was likely tobe a 'worst case scenario'. I also concluded that a genuine 'mood forchange' had occurred within the industry and the vast majority ofparticipants sought to proactively adopt, and in many cases, fast-track,technologies and fishing practices that would, in my mind at least,ensure continuity of employment and fishery rebuild.[257] It is clear from the Minister's affidavit that he was alive to the HSSrecommendation that a rebuild occur within 2*Tmin, but considered that a longerrebuild timeframe was appropriate in this case. In determining the rebuild timeframe,he had regard to all relevant factors: the biological characteristics of the stock,environmental conditions, and social, cultural and economic factors.149 Footnotes omitted.Did the Minister give adequate consideration to whether the rebuild would occurwithin a timeframe appropriate to the stock?[258] The Minister did not separately address what a maximum rebuild periodappropriate to the tarakihi stock would be. But for the reasons I have explained above,I do not consider that it was necessary for the Minister to do so. The Act does notrequire a two-stage analysis of this kind.[259] The decision paper did not expressly address, as a distinct inquiry, whether arebuild period of 25 years is a period "appropriate to the stock". The Minister doesnot say he separately turned his mind to that issue. It would have been preferable forFisheries New Zealand to provide explicit advice on this point, and for the Minister toexpressly consider it. But I do not consider that was essential, provided the questionwas implicitly addressed. Here, it was sufficient that the Minister turned his mind tothe rebuild period, and formed the view that it was an appropriate period afterconsidering all relevant factors including the biological characteristics of the stock andrelevant environmental considerations, and the relationship between the rebuild periodand Tmin. He was expressly advised that a rebuild period of 25 years would beinconsistent with the guidance in the HSS. That implicit consideration of theappropriateness of the rebuild period to the stock was in my view sufficient to complywith the statutory scheme.Issue 2: Did the Minister err by failing to take into account provisions of the HSSor the Operational Guidelines relating to a 70 per cent probability of rebuild?Were the HSS or Operational Guidelines mandatory relevant considerations?[260] That leaves the question of whether the Minister's decision was nonethelessunlawful and liable to be set aside because the HSS and/or the Operational Guidelinesprovided guidance that an acceptable probability of rebuild was 70 per cent, and thisguidance was a mandatory relevant consideration.[261] One might think this was not a promising argument for a number ofoverlapping reasons.[262] First, as already mentioned, neither the HSS nor the accompanying OperationalGuidelines is a planning document contemplated by the Act. They were issued bythe Ministry to provide greater clarity and transparency in relation to the advice to beprovided by the Ministry to the Minister. As already mentioned, s 11 of the Act setsout in some detail the planning documents that the Minister must take into account.The argument that the Minister was required to consider the HSS and/or theOperational Guidelines faces the significant hurdle that these non-statutory documentsare not among those specified in s 11.[263] Second, the HSS is not addressed to the Minister. It is a statement of thestandards that the Ministry is expected to meet in preparing its advice. It seemsambitious to argue that the Minister was required to take into account a document thatwas not addressed to him, or intended to be used by him in making decisions.[264] Third, the HSS expressly states that it is not intended to have any legal force.[265] Fourth, for more than a decade the Act operated without any HSS orOperational Guidelines of this kind. They were not a necessary pre-condition of validdecision-making by the Minister before they were issued, and did not acquire thatstatus upon being issued in 2008.[266] Against that backdrop, it seems difficult to conclude that the legislature musthave intended to require the Minister to take the HSS and/or Operational Guidelinesinto account when making decisions under s 13.[267] I repeat, for ease of reference, the passage from CREEDNZ Inc vGovernor-General set out in the judgment of Courtney J above at [142]:150It is a familiar principle, commonly accompanied by citation of a passage inthe judgment of Lord Greene MR in Associated Provincial Picture Houses Ltdv Wednesbury Corporation "If, in the statute conferring the discretion, thereis to be found expressly or by implication matters which the authorityexercising the discretion ought to have regard to, then in exercising thediscretion it must have regard to those matters". More recently in Secretaryof State for Education and Science v Tameside Borough Council Lord Diplock put it as regards the statutory powers of a Minister that "it isfor a court of law to determine whether it has been established that in reaching150 CREEDNZ Inc v Governor-General, above n 89, at 182–183 (citations omitted).his decision he had directed himself properly in law and had inconsequence taken into consideration the matters which upon the trueconstruction of the Act he ought to have considered "What has to be emphasised is that it is only when the statute expressly orimpliedly identifies considerations required to be taken into account by theauthority as a matter of legal obligation that the Court holds a decision invalidon the ground now invoked. It is not enough that a consideration is one thatmay properly be taken into account, nor even that it is one which many people,including the Court itself, would have taken into account if they had to makethe decision. Questions of degree can arise here and it would be dangerous to dogmatise.But it is safe to say that the more general and the more obviously importantthe consideration, the readier the Court must be to hold that Parliament musthave meant it to be taken into account.[268] Plainly the HSS contains a great deal of information that can properly be takeninto account by the Minister. Fisheries New Zealand's advice paper made frequentreference to the HSS. The Minister also confirmed, in his affidavit, that he took intoaccount various aspects of the HSS. But the Act does not expressly requirethe Minister to have regard to the HSS and Operational Guidelines. Nor in my viewcan it be implied into the Act that, as a matter of legal obligation, the Minister wasrequired to have regard to an (informal) planning document of this kind.[269] I accept Mr Scott's submission that the Judge appears to have run together thetest in CREEDNZ and the test — addressed to the quite different issue of mistake offact — set out in the High Court decision in Taiaroa v Minister of Justice.151Were the HSS or Operational Guidelines "best information" for the purpose of s 10?[270] I would therefore have little difficulty in dismissing this argument as initiallypleaded by Forest & Bird. However it is necessary to go on to consider the way inwhich this argument was reframed by the Judge by reference to s 10 of the Act, whichrequires the Minister and other decision-makers to take into account four specifiedinformation principles, including the principle that decisions should be based on thebest available information. The Judge held that the HSS represented best practice inrelation to probability of rebuild, and was therefore "best available information".151 Taiaroa v Minister of Justice, above n 90, at 34.The Judge considered that the Minister was thus required by s 10(a) to take thisguidance on best practice into account.152[271] Putting to one side the procedural issues raised by this reframing, which wasnot foreshadowed in Forest & Bird's pleading, there are in my view compellingreasons not to accept this line of reasoning.[272] First, and most fundamentally, there is an important difference betweeninformation — the evidence on the basis of which a regulatory decision is made —and guidance on best practice in making a regulatory decision. The HSS falls into thesecond of these categories. As it records, it is a "policy statement of best practice inrelation to the setting of fishery and stock targets and limits for fishstocks". It provides"guidance as to how fisheries law will be applied in practice". The HSS is concernedwith the law and its implementation. It is not a source of factual information orevidence on which to base a particular decision.[273] The requirement to base decisions on the best available information requiredthe Minister to seek out the best scientific and other information, and the best analysisof that information (including modelling), that was available without unreasonablecost, effort or time.153 The Minister was then required to make a decision under s 13having regard to that information. The Act does not require the Minister (or any otherdecision-maker) to adopt best practice in making regulatory decisions under the Act,or to inquire into and have regard to best practice in regulatory decision-making.From a public law perspective, the Minister was required to refrain from making adecision that was irrational or unreasonable. That is a very different threshold fromrequiring the decision to be consistent with best practice regulatory decision-making,or requiring the decision-maker to consider guidance on best practice regulatorydecision-making. Neither the Act nor established principles of public law can justifyimposing such a requirement on the Minister.[274] This distinction is especially clear in the present context. The guidance inquestion concerns the level of confidence with which decisions should be made.152 Judgment under appeal, above n 4, at [152].153 Fisheries Act, s 10.Should the Minister apply the (implicit statutory) confidence requirement of a50 per cent probability, or should the Minister make decisions on the basis that theprescribed target in the statute should be achieved with 70 per cent probability?This goes to the heart of how the Minister makes the s 13(2)(b) decision. It has nothingto do with the information on which that decision is based.[275] Reading s 10 broadly to encompass guidance on how to make regulatorydecisions, and the level of confidence required when making such decisions, would inmy view be a significant and unwarranted extension of the scope of judicial review.[276] Second, as the High Court rightly held, it is implicit in s 13(2)(b) that thechosen TAC must ensure a rebuild to BMSY with at least a 50 per cent probability.154It seems odd to suggest that the Minister was required by s 10 to consider adopting aprobability of rebuild that differed from the probability implicit in s 13.[277] Third, the Minister received advice on, and expressly turned his mind to, theprobability with which a rebuild would be achieved as a result of his decision. He wasconscious that a 50 per cent probability of rebuild within a given period was notespecially high, as he expressly noted in the context of his 2018 decision. But heconsidered it was an appropriate approach to adopt, for the reasons which he gave.I do not understand what express consideration of the recommendation in the HSS thata 70 per cent probability be adopted would have added to this analysis. It could hardlybe suggested that the Minister was not aware that he could adopt a higher probabilityof rebuild, and that this would result in a higher TAC reduction for any desired periodof rebuild or, conversely, a longer expected period of rebuild for any given TACreduction.[278] The Judge was right to find that the Minister was required by implication toconsider the probability of rebuild associated with a proposed TAC reduction.155He did so. Suggesting he was specifically obliged to consider a 70 per cent defaultprobability adds nothing material to this, and intrudes further than can be justified intothe fine detail of how the Minister goes about making a decision under s 13(2).154 See Judgment under appeal, above n 4, at [116]–[126].155 At [116]–[118].Did the HSS provide for rebuilding plans to be based on 70 per cent probability ofsuccess?[279] In these circumstances, it is not strictly speaking necessary to consider whetherthe HSS provides for rebuilding plans to be determined by reference to a 70 per centprobability of achieving the relevant target of BMSY. But for the sake of completeness,I record that in my view it does not. As I read the HSS, it addresses two quite distinctissues:(a) the probability with which a rebuilding plan must be expected toachieve its target; and(b) the identification of the point in time at which a stock has been rebuiltto the relevant target.[280] The bullet point relied on by Forest & Bird to support its argument that the HSSrequires a 70 per cent probability of rebuild is more naturally understood as setting outa test to be applied when the question that is being asked is the second of these:whether the stock has been fully rebuilt. That is, the question is whether the target hasbeen achieved as a result of action taken pursuant to a rebuilding plan, with the resultthat the plan can be discontinued. That reading is confirmed by the footnote whichexplains that a probability level greater than 50 per cent ensures that rebuilding plansare not abandoned too soon: the focus is on whether rebuilding is complete and therebuilding plan can be abandoned.156[281] That reading of the bullet points in the HSS relating to breach of soft limits isconfirmed by the discussion of hard limits that follows. The corresponding bulletpoint relating to hard limits provides guidance that fisheries that have been closed asa result of breaching the hard limit should not be re-opened until it can be demonstratedthat there is at least a 70 per cent probability that the stock has rebuilt to or above thelevel of the soft limit.157 A corresponding footnote records that use of a probability156 HSS, above n 5, at 8, n 8.157 At 9.level greater than 50 per cent ensures that closed fisheries are not re-opened too soon,as this could quickly lead to the need for reconsideration of closure.158[282] I therefore do not consider that the HSS specifies the probability of rebuildingthe stock to a 70 per cent target level at the end of the timeframe: it does not go beyondreferring to an "appropriate probability".[283] The Operational Guidelines do refer to a probability of 70 per cent as theminimum standard for a rebuilding plan, as set out above at [204] and [206]. But aswith the HSS, that guidance on regulatory decision-making (and on how fisheries lawwill be applied in practice) is not "information". Thus it is not a mandatory relevantconsideration for the Minister via s 10 of the Act.Conclusion on Issue 2[284] In summary, I am firmly of the view that the Minister's decision under s 13(2)is not liable to be set aside on the ground that the Minister failed to consider any"best practice" policy guidance on regulatory decision-making found in the HSS orthe Operational Guidelines.Conclusion and practical consequences[285] I have concluded that the Judge was wrong to find that the Minister had failedto comply with the requirements of the Act when he made the 2019 decision. I wouldtherefore allow the appeal.[286] The approach I have adopted to the interpretation of s 13(2)(b) is broadlyconsistent with, but not identical to, the approach contended for by the Minister in hiscross-appeal. But as already mentioned, the Minister's argument was not properlyspeaking a cross-appeal because the Minister was not contending for a differentoutcome from that arrived at in the High Court. In those circumstances I doubt it isstrictly necessary to determine the cross-appeal. But out of an abundance ofcaution, I would dismiss the cross-appeal on the basis that the correct approach todecision-making under s 13(2) is as set out earlier in this judgment.158 At 9, n 12.[287] The High Court did not determine the fifth cause of action in Forest & Bird'sstatement of claim alleging that the Minister's decision was unreasonable, because onthe Judge's approach it was unnecessary to do so. Ultimately, it was common groundbefore us that even if the appeal was successful, it was not necessary to refer theproceeding back to the High Court to determine that cause of action as the Minister's2019 decision has been overtaken by subsequent events. We were advised by counselthat the Minister made a decision in September 2022 resetting the TAC and TACC forEast Coast tarakihi. In those circumstances no useful purpose would be served by theHigh Court hearing and determining a challenge to the 2019 decision onunreasonableness grounds.[288] The majority have reached a different view on the interpretation of the Act, andin particular s 13(2)(b). What is I think quite clear from reading the judgments ofthis Court is that s 13(2)(b) is not happily framed: there are difficulties with both itsstructure and its language which together leave ample room for different (reasonable)understandings of how the provision is intended to operate. That is unfortunate to saythe least, given the practical significance of the TAC regime. Moreover it seems tome that the approach preferred by the majority is likely to be difficult for the Ministerand officials to apply in practice. There is abundant scope for further litigation aboutdecisions made under s 13(2)(b), and for the uncertainty, delay and cost associatedwith such litigation, for so long as the provision remains in its current unsatisfactoryform. I encourage those responsible for the legislation to review it sooner rather thanlater, with a view to reframing s 13(2)(b) so that it clearly identifies the decisions tobe made by the Minister, the order in which relevant matters are to be addressed, andthe factors to be taken into account at each step in the decision-making process.Solicitors:Chapman Tripp, Wellington for AppellantRoyal Forest & Bird Protection Society of New Zealand Inc, Christchurch for First RespondentCrown Law Office | Te Tari Ture o te Karauna, Wellington for Second RespondentKāhui Legal, Wellington for Third Respondent