NOBLE v MINISTRY FOR PRIMARY INDUSTRIES [2020] NZCA 100

NOBLE v MINISTRY FOR PRIMARY INDUSTRIES [2020] NZCA 100 [20 April 2020]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA558/2019[2020] NZCA 100BETWEEN HIRA CYRIL NOBLEApplicantAND MINISTRY FOR PRIMARY INDUSTRIESRespondentHearing: 26 February 2020Court: Clifford, Simon France and Lang JJCounsel: Applicant in PersonZ A Fuhr for RespondentJudgment: 20 April 2020 at 11 amJUDGMENT OF THE COURTThe application for leave to bring a second appeal is declined.____________________________________________________________________REASONS OF THE COURT(Given by Simon France J)[1] Mr Noble was convicted of knowingly contravening an order disqualifyinghim from fishing under the Fisheries Act 1996 (the Act).1 He was sentenced to40 hours' community work.2 His appeal to the High Court was unsuccessful.3The basic proposition Mr Noble advances before this Court is that he has customaryfishing rights that his disqualification order does not override.1 Ministry for Primary Industries v Noble [2019] NZDC 14277; and Fisheries Act 1996, ss 257(2)and 252(4), which carries a maximum penalty of one year's imprisonment or a $100,000 fine.2 Ministry for Primary Industries v Noble [2019] NZDC 14176.3 Noble v Chief Executive of the Ministry for Primary Industries [2019] NZHC 2391.[2] Section 237 of the Criminal Procedure Act 2011 provides that leave to bring asecond appeal must not be given unless the Court is satisfied the appeal involves amatter of general or public importance, or a miscarriage of justice may have occurredor may occur if leave is not given.Facts and previous procedural history[3] On 21 April 2017, Mr Noble was disqualified in the Tauranga District Courtfrom fishing for a period of three years.4 The disqualification followed his convictionand sentence for fisheries offences involving the illegal taking of shellfish and kina.The Judge explained the disqualification to Mr Noble in Court (where Mr Noble waspresent) and stated that he was "not allowed to get involved in fishing in any way atall as by operation of law".5[4] On 13 July 2018, Mr Noble, with his son and a friend, went to a spot to gatherkina. Fisheries officers were alerted and observed Mr Noble driving the boat andreceiving catch from the other two men who were diving for the kina. The Fisheriesofficers intercepted the vessel and inspected it. They found 98 kina on board whichwas within the legal daily limit for the two divers. When questioned, Mr Noble saidhe thought the disqualification order only applied to commercial fishing. In a laterinterview, Mr Noble admitted to being on the boat but stated he did not dive for kina.He said he was on the boat for safety purposes and that the seafood was being collectedfor a tangi in his community.[5] At a Judge-alone trial in the District Court, Judge Harding found thatMr Noble's involvement, as the driver of the boat and having assisted the divers,contravened the prohibition imposed on him under the Act to refrain from "engagingin fishing or any activity associated with the taking of fish, aquatic life, or seaweed".6The Judge did not accept Mr Noble's explanation that he was under a misapprehensionas to his disqualification. The Judge also rejected his challenges to jurisdiction on thebasis of Māori sovereignty.74 Ministry of Fisheries v Noble [2017] NZDC 8354; and Fisheries Act, s 257(1).5 At [38].6 Ministry for Primary Industries v Noble, above n 1, at [10]; and Fisheries Act, s 257(1)(d)(ii).7 At [15].[6] On appeal in the High Court, Mr Noble had three grounds of appeal: he did notreceive a copy of the judgment from the District Court and therefore did notunderstand the extent of it; in any event, he still had customary fishing rights; and theorder breached Te Tiriti o Waitangi and should be dealt with in a tribal court. Hinton Jwas also satisfied that Mr Noble was aware of the terms of the disqualification orderand held that there is no exception for customary fishing rights in s 257 of the Act.The Judge also considered Mr Noble's arguments concerning the application oftikanga and the relevance of customary fishing rights, and ultimately dismissed theappeal, finding that none of the orders made against Mr Noble breached Te Tiriti oWaitangi.A question of general or public importance?[7] Before outlining Mr Noble's submissions, it is convenient to set out tworelevant statutory provisions. Section 257 of the Fisheries Act provides:257 Prohibition of fishing activity in case of reoffending(1) If any person is convicted of—(a) 2 or more offences against this Act that are offences referred toin subsection (1) or subsection (2) or subsection (3) ofsection 252, and are offences committed on different occasions;or(b) 3 or more offences that are offences referred to in subsection(1) or subsection (2) or subsection (3) or subsection (5) ofsection 252, and are offences committed on differentoccasions,—within a period of 7 years, the court shall, in addition to any otherpenalty imposed, order—(c) that the person forfeit any licence, approval, permission, orfishing permit obtained under this Act; and(d) that the person be prohibited, for a period of 3 yearscommencing on the date of the most recent conviction, fromdoing any of the following:(i) holding any licence, approval, permission, or fishingpermit obtained under this Act:(ii) engaging in fishing or any activity associated with thetaking of fish, aquatic life, or seaweed:(iii) deriving any beneficial income from activities associatedwith the taking of fish, aquatic life, or seaweed.(2) Every person commits an offence and is liable to the penalty set out insection 252(4) who knowingly contravenes or fails to comply with anorder made under subsection (1).[8] The second provision is s 10(d) of the Treaty of Waitangi (Fisheries Claims)Settlement Act 1992, which provides:10 Effect of Settlement on non-commercial Maori fishing rights andinterestsIt is hereby declared that claims by Maori in respect ofnon-commercial fishing for species or classes of fish, aquatic life, orseaweed that are subject to the Fisheries Act 1983—(a) shall, in accordance with the principles of the Treaty ofWaitangi, continue to give rise to Treaty obligations onthe Crown; and in pursuance thereto(b) (c) (d) the rights or interests of Maori in non-commercial fishinggiving rise to such claims, whether such claims are founded onrights arising by or in common law (including customary lawand aboriginal title), the Treaty of Waitangi, statute, orotherwise, shall henceforth have no legal effect, andaccordingly—(i) are not enforceable in civil proceedings; and(ii) shall not provide a defence to any criminal, regulatory, orother proceeding,—except to the extent that such rights or interests are provided forin regulations made under section 89 of the Fisheries Act 1983.[9] Mr Noble submits there has been a breach of his human rights, his customaryfishing rights, and Te Tiriti o Waitangi. He says it is his human right to access foodunder his customary fishing right, relying on the International Covenant on Economic,Social and Cultural Rights,8 Te Tiriti o Waitangi, and Te Runanganui o Te Ika WhenuaInc Society v Attorney-General.9[10] He submits Te Runanganui and Ngāti Apa v Attorney-General establish thatcustomary title and rights remain unless and until they have been extinguished, and8 International Covenant on Economic, Social and Cultural Rights 993 UNTS 3 (opened forsignature 16 December 1966, entered into force 3 January 1976).9 Te Runanganui o Te Ika Whenua Inc Society v Attorney-General [1994] 2 NZLR 20 (CA).they can only be extinguished by free consent of the native occupiers.10 In the absenceof extinguishment, he says Parliament cannot legislate over such customary title.Once it has been established that customary rights do exist, the onus, he says, falls onthe Crown to show that they have been extinguished with consent.11[11] Mr Noble further notes that the courts' practice is to interpret legislationaccording to the principles of Te Tiriti and tikanga where appropriate.12 Article 2 ofTe Tiriti protects Māori rangatiratanga, which refers to self-determination and theprotection of lands, forests, fisheries and other taonga or treasures.[12] Mr Noble particularly contests Hinton J's analysis that the orders permitted bys 257(1)(d)(ii) of the Act extend to customary fishing rights. Hinton J stated in thisregard:[16] Under s 257(1)(d)(ii) of the Act, the restriction imposed on Mr Nobleextends to customary fishing rights.[17] The section does not say so expressly, but such conclusion is easilydrawn from the comprehensive language used. A person is prohibited fromengaging in "fishing or any activity associated with the taking of fish, aquaticlife, or seaweed". "Fishing" is defined in [s 2 of] the Act as meaning, interalia, "the catching, taking, or harvesting of fish, aquatic life, or seaweed [and] any operation in support of or in preparation for any activities describedin this definition".(Footnote omitted.)[13] Mr Noble submits there is no express mention of customary fishing rightsbeing extinguished in this section, and the "comprehensive language" used does notinclude customary fishing rights. The key proposition is that the fishing ban to whichhe is subject and which is imposed pursuant to s 257(1)(d)(ii) of the Act does not applyto customary rights in the absence of express language. This is the question of law tobe advanced on the appeal.[14] The Crown submits that customary fishing rights are extinguished by thefisheries legislation except to the extent provided for by the Fisheries Act andthe regulations made under it.10 Attorney-General v Ngāti Apa [2003] 3 NZLR 643 (CA); and Te Runanganui, above n 9.11 Attorney-General v Ngāti Apa, above n 10, at [148].12 Relying on Takamore v Clarke [2011] NZCA 587, [2012] 1 NZLR 573.[15] We agree and consider the matter sufficiently clear that it would beinappropriate to grant leave. Mr Noble's submission cannot prevail in the face of theexpress terms of s 10(d) of the Treaty of Waitangi (Fisheries Claims) Settlement Act.This is reinforced by regulations made under the Fisheries Act which cater for thetaking of fish for customary food gathering and which introduce a permit schemewhich are issued by Tangata Kaitiaki on defined occasions.13 The words of s 10(d)(ii)are clear and need no restatement.A potential miscarriage?[16] The other circumstance in which leave to bring a second appeal may be givenis where there may be a miscarriage of justice.[17] There are concurrent findings of facts that Mr Noble knew the terms of theorder. There is no evidence that Mr Noble tried to get approval under the regulatoryroutes open to him — for example, as an individual under reg 11 of the Fisheries(Kaimoana Customary Fishing) Regulations 1998. It is unnecessary for us to considerwhether he could have obtained such approval given his banned status as there is noevidence he ever sought it.[18] We are accordingly satisfied there is no appearance of a miscarriage nor thepossibility of one if leave to bring a second appeal is declined.Result[19] The application for leave to bring a second appeal is declined.Solicitors:Crown Law Office, Wellington for Respondent13 See reg 11 of the Fisheries (Kaimoana Customary Fishing) Regulations 1998, and also regs 50and 51 of the Fisheries (Amateur Fishing) Regulations 2013, which authorise customary fishingrights in certain circumstances.