NOBLE v MINISTRY FOR PRIMARY INDUSTRIES [2019] NZHC 2391

NOBLE v MINISTRY FOR PRIMARY INDUSTRIES [2019] NZHC 2391 [20 September 2019]IN THE HIGH COURT OF NEW ZEALANDTAURANGA REGISTRYI TE KŌTI MATUA O AOTEAROATAURANGA MOANA ROHECRI-2019-463-000061[2019] NZHC 2391BETWEEN HIRA CYRIL NOBLEAppellantAND THE CHIEF EXECUTIVE OF THEMINISTRY FOR PRIMARY INDUSTRIESRespondentHearing: 30 August 2019Appearances: The Appellant in PersonE Collis for the RespondentJudgment: 20 September 2019JUDGMENT OF HINTON JThis judgment was delivered by me on 20 September 2019 at 4.00 pmRegistrar/Deputy RegistrarSolicitors:Pollett Legal Ltd, TaurangaParty:The AppellantIntroduction[1] Mr Noble appeals the decision of Judge Harding dated 8 July 2019, where hewas convicted on a single charge of "knowingly contravenes an order" under s 257 ofthe Fisheries Act 1996 (the Act).1 Mr Noble was sentenced to 40 hours' communitywork. The Judge also made an order for forfeiture of the boat and trailer.[2] Section 257 of the Act is in these terms: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 referredto in subsection (1) or subsection (2) or subsection (3) ofsection 252, and are offences committed on differentoccasions; 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 activitiesassociated with the taking of fish, aquatic life, orseaweed.(2) Every person commits an offence and is liable to the penalty set outin section 252(4) who knowingly contravenes or fails to comply withan order made under subsection (1).1 Ministry of Primary Industries v Noble [2019] NZDC 14277 (conviction decision) and [2019]NZDC 14176 (sentencing decision).(3) Notwithstanding subsection (1), the court may, in the circumstancesof any particular case, and upon application being made to it by theperson concerned within 30 days after the date of conviction or suchextended period as the court may allow, direct that any particularlicence, approval, permission, or fishing permit shall not be forfeit, orthat the person shall not be prohibited from engaging in fishing or inany activity associated with the taking of fish, aquatic life, or seaweedor deriving any beneficial income from fishing or any activityassociated with the taking of fish, aquatic life, or seaweed.Background and District Court decision[3] On 21 April 2017, Mr Noble was sentenced by Judge Ingram, having beenfound guilty of fisheries offences involving illegally taking shellfish and kina, whichwas provided to Mr and Mrs Noble's fishing company in substantial quantities.2 Hewas sentenced to 10 months' home detention, 200 hours of community work, andprohibited from being involved in fishing under s 257(1). On the prohibition,Judge Ingram said:Everybody needs to be under no illusion about this. In your case, Mr Noble,you are not allowed to get involved in fishing in any way at all as by operationof law. That is a bit like being disqualified from driving. Once your period isup then you can go fishing again but for the moment you are not allowed toget involved in any way at all. It is not a sentence I am imposing it issomething that follows by operation of law. You need to know you are amarked man. You are pretty distinctive, you are easy to find and they willknow where to find you over the next few years so you need to make sure thatyou avoid any temptation to get involved in anything like this in the futurebecause the consequences are likely to be very severe.[4] On 13 July 2018, Mr Noble was observed being involved in fishing. There hadbeen a death in his community and there was to be a tangi. He wished to provide kaito the whānau, as is traditional. He and two young men fished from a small boataround Mount Maunganui. He was observed by fisheries officers. Mr Noble drovethe boat and was observed receiving catch from the other two, who were diving.[5] Before Judge Harding, Mr Noble made various jurisdictional arguments,similar to points he made before me to which I will return, and also said he thought he2 Ministry of Fisheries v Noble [2017] NZDC 8354.was only prohibited from commercial fishing. The Judge did not accept thesearguments, so convicted and sentenced him.Right of appeal[6] Mr Noble's right of appeal is governed by s 296(2) of the Criminal ProcedureAct 2011. It provides that a defendant may, with leave of the first appeal court, appealunder the subpart on a question of law, against a ruling by the trial court.[7] The Court of Appeal decision in Brown v R established a framework for thetypes of errors which would qualify as a question of law.3 These are:(a) a misdirection of law apparent in the decision (or "a conventional legalquestion on unchallenged facts");(b) oversight of a relevant matter, or consideration of an irrelevant matter;or(c) a factual finding unsupported by any evidence, or an omission to drawan inference of fact which is the only one reasonably possible on theevidence.Grounds of appeal[8] In his oral submissions, Mr Noble relied on the following grounds:(a) He did not receive a copy of the judgment of Judge Ingram, setting outthe order he is charged with breaching, and therefore did not understandthe extent of it.4 He also referred to this argument as a lack ofdisclosure.(b) In any event, he considered he still had customary fishing rights, evenallowing for the order.3 Brown v R [2015] NZCA 325.4 Ministry of Fisheries v Noble [2017] NZDC 8354.[9] In his notice of appeal, Mr Noble also raised an argument that the decisionimposing the s 257 order, breached the Treaty of Waitangi, or in any event, the mattershould be dealt with in a tribal court, or similar. He did not really address me on thatpoint orally. My impression was Mr Noble recognised from reading the respondent'ssubmissions that it was more difficult still than his other points, but I address it in anyevent.Lack of knowledge of effect of Judge Ingram's order[10] Mr Noble says that he was not given a copy of the judgment of Judge Ingramand thought it related only to not being allowed to carry out any more commercialfishing, and not to recreational fishing. He said he did not have much understandingof the law.[11] Mr Noble was in Court on the day that Judge Ingram gave his decision and hewas represented by experienced counsel. In fact, he told me his lawyer's fees had cost$50,000 and that was without a defended hearing, which had originally been intended.The Judge not only made the order under s 257, he set out very clearly that Mr Noblewas prohibited from fishing "in any way at all", as set out in full above.[12] I consider it was very clear from what Mr Noble would have heard, let alonewhat he would have been advised by his lawyer, what the extent of the order was.[13] The respondent says Mr Noble was given a copy of the order on the day,although they do not submit any evidence of this. I do, however, consider it is likelyMr Noble was given a copy of the judgment. In any event, the order was made andMr Noble was aware of it.[14] Lack of knowledge of the law is no excuse. I also do not accept that was thecase here.[15] As I noted earlier, Mr Noble was running a commercial fishing business at thetime of the first offence. He strikes me as being a very capable person. I have littledoubt that he had Judge Ingram's order fully explained to him and he understood it.Breach of customary fishing rights[16] Under s 257(1)(d)(ii) of the Act, the restriction imposed on Mr Noble extendsto customary fishing rights.[17] The section does not say so expressly, but such conclusion is easily drawn fromthe comprehensive language used. A person is prohibited from engaging in "fishingor any activity associated with the taking of fish, aquatic life, or seaweed". "Fishing"is defined in the Act as meaning, inter alia, "the catching, taking, or harvesting of fish,aquatic life, or seaweed [and] any operation in support of or in preparation for anyactivities described in this definition".5[18] In Wells v Ministry of Primary Industries (which was, somewhat ironically, anappeal against the decision of Judge Ingram referred to above, albeit by parties otherthan Mr Noble), Heath J considered whether the Act's provisions cover customaryfishing rights, and determined they do:6[27] There is no doubt that the Act governs the right to take fish inNew Zealand. Any exceptions for customary rights are expressly containedin that statute.7[19] There is no exception for customary rights in s 257.Breach of Treaty of Waitangi[20] As Judge Harding said in his decision, the higher Courts have made it plainthat any question as to jurisdiction arising out of Māori sovereignty can be a subjectfor Parliament, the Waitangi Tribunal, the media and similar. But it cannot impact onthe jurisdiction clearly vested in the Courts. This has been made clear in a number ofjudgments, including the recent decision of the Court of Appeal in Yates v R.8[21] Some legislation expressly recognises customary rights of Māori, but as I havesaid, that is not the case in respect of s 257 of the Act. There are also some cases where5 Fisheries Act 1996, s 4 definition of "fishing".6 Wells v Ministry of Primary Industries [2017] NZHC 1960 at [27].7 For example, s 186 of the Fisheries Act 1996 empowers the Governor-General to make regulationsrecognising and providing for customary fishing rights.8 Yates v R [2019] NZCA 155.tikanga are relevant, such as Takamore,9 but such cases do not involve a challenge tojurisdiction, rather an assessment of the relevant law. The relevant law here is the Act.[22] It therefore cannot be argued that any orders made against Mr Noble are inbreach of the Treaty of Waitangi, or suffer from any lack of jurisdiction.Conclusion[23] Mr Noble therefore has not made out any of his grounds of appeal and theappeal must be dismissed.[24] He is aware that application can be made by the owner of the boat (assumingit is, as Mr Noble says, not him) to set aside the forfeiture. Mr Noble could focus hisefforts on assisting the owner with that application.-----------------------------------------------Hinton J9 Takamore v Clarke [2012] NZSC 116, [2013] 2 NZLR 733.