KAIKŌURA AND HURUNUI LANDOWNERS ASSOCIATION INCORPORATED v THE MINISTER OF FISHERIES [2022] NZHC 2677

KAIKŌURA AND HURUNUI LANDOWNERS ASSOCIATION INCORPORATED v THE MINISTER OFFISHERIES [2022] NZHC 2677 [17 October 2022]IN THE HIGH COURT OF NEW ZEALANDWELLINGTON REGISTRYI TE KŌTI MATUA O AOTEAROATE WHANGANUI-A-TARA ROHECIV-2021-485-000604[2022] NZHC 2677UNDER THE JUDICIAL REVIEW PROCEDUREACT 2016IN THE MATTER OF An application for judicial reviewBETWEEN KAIKŌURA AND HURUNUILANDOWNERS ASSOCIATIONINCORPORATEDApplicantAND THE MINISTER OF FISHERIESFirst RespondentAND TE RŪNANGA O NGĀI TAHU and TERŪNANGA O KAIKŌURASecond RespondentsHearing: 22 August 2022Appearances: P A Cowey, and D.L. Bell for the ApplicantD J Watson for the First RespondentR J B Fowler KC and J Inns for the Second RespondentsJudgment: 17 October 2022JUDGMENT OF GENDALL JTable of ContentsIntroduction [1]The parties [4]Background to mātaitai and legislative framework [7]The Regulations [21]Factual background [25]The applications [25]Consultation [29]The decisions [33]Subsequent concerns raised by individuals and groups associated with the applicant [37]The mātaitai [40]Grounds of review [42]Relief sought [46]Respondents' positions [49]Judicial review principles [52]First ground of review — uncertainty [54]Approach to analysis [56]The empowering legislation [58]Are the notices uncertain? [60]Use of the term "South Island fisheries waters" [61]Use of undefined terms [74]Descriptions used to define the boundaries of the mātaitai [78]Conclusion on first ground of review [83]Second ground of review — lack of evidential foundation [86]Legal principles relating to an error of law [89]Evidence — mandatory and impermissible considerations [93]Correct approach to the reg 20 requirements [97]Analysis — identified traditional fishing ground [103]Analysis — size appropriate to effective management [111]Conclusion on second ground of review [120]Third ground of review — failure to consult [123]The consultation requirements under the Regulations [125]Were the requirements met? [128]Express requirements [130]Additional steps beyond express requirements [148]Conclusion on third ground of review [157]Relief [160]Conclusion [163]First ground of review — uncertainty [164]Second ground of review — lack of evidential foundation [169]Third ground of review — failure to consult [171]Relief [172]Result [174]Costs [176]Introduction[1] Mātaitai reserves (mātaitai) are customary fisheries management arrangementsthat allow tangata whenua, in recognition of their tino rangatiratanga andkaitiakitanga, to exercise customary management practices within parts of thecustomary food gathering area/rohe moana for which they are tangata whenua.Mātaitai are an important mechanism by which the Crown provides redress for historicbreaches of te Tiriti o Waitangi (te Tiriti) and by which the Crown complies with teTiriti obligations on an ongoing basis.[2] In 2018 the then-Minister of Fisheries (the Minister) declared three areascovering the lower reaches of the Oaro, Kahutara and Conway (Tūtaeputaputa) Rivercatchments (located generally south of Kaikōura) to be mātaitai (the decisions), uponapplication by the second-named respondent, Te Rūnanga o Kaikōura. The applicantnow challenges these decisions.[3] The applicant focuses its challenge on three alleged errors by the Minister.First, it says the geographical extent of the mātaitai is unable to be accuratelyascertained because the descriptions of the boundaries used in the notices areuncertain. Secondly, it maintains the Minister's decisions to create the mātaitai wereunreasonable because he did not have sufficient probative evidence before him at thetime the decisions were made reasonably capable of satisfying him the mātaitai shouldbe declared. Thirdly, the applicant says the Minister failed to comply with theconsultation obligations set out in the relevant regulations and the common law dutyof consultation. The applicant complains too that members of the local communitywere not given proper notice of the applications and were therefore unable to put theirviews before the Minister to be considered.The parties[4] The applicant is an incorporated society established in March 2021. Theapplicant says it represents landowners whose individual properties are affected by theOaro Mātaitai Reserve, the Kahutara Mātaitai Reserve and/or the TūtaeputaputaMātaitai Reserve (the mātaitai).[5] The first respondent is the Minister of the Crown responsible for theadministration of the Treaty of Waitangi (Fisheries Claims) Settlement Act 1992 (theFisheries Settlement Act); the Fisheries Act 1996 (the Fisheries Act); and the Fisheries(South Island Customary Fishing) Regulations 1999 (the Regulations). In 2018, thethen-Minister of Fisheries declared the establishment of the Kahutara Mātaitai Reserveand Tūtaeputaputa Mātaitai Reserve, and an extension to the existing Oaro MātaitaiReserve. These are the decisions now under challenge.[6] The second respondents (the Ngāi Tahu parties) were joined to theseproceedings following a successful application for joinder in April 2022.1 The firstnamed second respondent is Te Rūnanga o Ngāi Tahu, which was established as therepresentative body of Ngāi Tahu Whānui in 1996 pursuant to s 6 of the Te Rūnangao Ngāi Tahu Act 1996. The members of Te Rūnanga o Ngāi Tahu encompass 18papatipu rūnanga, and they say they uphold the mana whenua and mana moana of theirrohe. The second named second respondent, Te Rūnanga o Kaikōura, is one suchpapatipu rūnanga. It is charged with upholding the rights and interests of Ngāti Kuri,which is the Ngāi Tahu hapū that holds mana whenua in the Kaikōura rohe.Background to mātaitai and legislative framework[7] Section 186 of the Fisheries Act empowers the Governor-General to makeregulations for the purpose of recognising and providing for customary food gatheringby Māori and the special relationship between tangata whenua and places ofimportance for customary food gathering. The only restriction in this respect is thatsuch food gathering must be neither commercial in any way nor for pecuniary gain ortrade.[8] Section 186(2)(b) and (c) confirms that regulations made under s 186 may: (b)empower the Minister to declare any part of New Zealand fisheries waters to be amātaitai; and/or (c) provide general restrictions and prohibitions in respect of thetaking of fisheries resources necessary or desirable to achieve the purpose of theFisheries Act in relation to mātaitai.1 Kaikōura and Hurunui Landowners Association Inc v Minister of Fisheries [2022] NZHC 702.[9] It is helpful here to explain briefly the genesis and context of these provisions,because the ability for the Minister to make the regulations outlined is adirect/statutory acknowledgement of the importance of mātaitai to tangata whenua,and specifically here the importance of mahinga kai to Ngāi Tahu.[10] As I heard from the Ngāi Tahu parties, the term "mahinga kai" is used by NgāiTahu to refer to the customary use and management of kai (food) and other naturalresources, the places where that kai or resource is procured, and the resourcesthemselves.2 Mahinga kai, I was informed, is central to Ngāi Tahu identity.3[11] Te Rōpū Whakamana i te Tiriti o Waitangi | the Waitangi Tribunal in its 1991report on the Ngāi Tahu claim defined "mahinga kai" to Ngāi Tahu as "those placeswhere food was produced or procured".4 As the Tribunal went on to state:5 Such a definition includes the tribal resources in and on the land, in theforests and in the rivers, lakes and sea and in the sky. It includes kai ika, kaimoana, kai awa, kai manu, kai roto and kai rakau. Ngai Tahu see theirmahinga kai in a holistic way [12] The Tribunal acknowledged that the claim involving mahinga kai "is one ofthe most emotionally charged elements of the Ngai Tahu claim."6 In so describing it,the Tribunal quoted from an essay of Tā Tipene O'Regan:7 The communal exploitation and use of natural resources both for tribalconsumption and trade was basic to the Maori economy and hence to thewhole social fabric of tribal and intertribal life. For generations, Ngai Tahuhave petitioned Parliament over deprivation of their traditional mahinga kai.The tribe claims that the Crown guaranteed our people all our fisheries andother natural food resources under Article 2 of the Treaty and, in terms of theKemp Purchase Deed, absolutely . . .[13] Accordingly, as the Tribunal noted, what Ngāi Tahu was therefore seeking inits claim was:82 Affidavit of Nigel John Scott, 20 June 2022, at [3].3 At [11].4 Te Rōpū Whakamana i te Tiriti o Waitangi | Waitangi Tribunal The Ngai Tahu Report 1991 (Wai27, 1991) at 150 [The Ngai Tahu Report].5 At 150.6 At 149, citing Tipene O'Regan "The Ngai Tahu claim" in IH Kawharu (ed) Waitangi: Maori andPakeha Perspectives of the Treaty of Waitangi (Oxford University Press, Auckland, 1989).7 At 149, citing O'Regan, above n 6.8 At 150, citing O'Regan, above n 6. compensation from the Crown for their lost mahinga kai and effectivepartnership with the Crown in the management and control of those few thatremain–including the fisheries.[14] The ability for the Minister to make regulations under s 186 represents theattempt to give effect to such effective partnership. It came about in the followingway.[15] Section 186 of the Fisheries Act is the successor provision to, and effectivelyrepeats, s 89 of the Fisheries Act 1983, which was inserted in 1992 under the FisheriesSettlement Act.9 The Fisheries Settlement Act gave effect to a deed of settlementbetween the Crown and Māori representatives (the Deed of Settlement), which fullyand finally resolved all Māori claims to commercial fisheries arising from historicbreaches of te Tiriti but confirmed non-commercial claims in relation to fisheriesresources subject to the Fisheries Act continue to give rise to obligations on the partof the Crown in accordance with te Tiriti.10[16] That Deed of Settlement recorded the Crown's confirmation and te Tiritiguarantee to Māori of full exclusive and undisturbed possession and tinorangatiratanga of their fisheries.11 It also recognised a duty in accordance with te Tiritito develop policies to help recognise use and management practices and to provideprotection of and scope for exercise of rangatiratanga in respect of traditionalfisheries.12[17] The long title to the Fisheries Settlement Act therefore records that the Act isto make better provision for Māori non-commercial traditional and customary fishingrights and interests and participation in the management and conservation of NewZealand's fisheries.[18] Section 10 of the Fisheries Settlement Act then goes on to provide, amongstother things, that the Minister of Fisheries, "acting in accordance with the principlesof the Treaty of Waitangi", shall consult with tangata whenua about and develop9 Treaty of Waitangi (Fisheries Claims) Settlement Act 1992, s 34.10 Crown and Māori Deed of Settlement, 23 September 1992.11 At [A] of the Preamble.12 At [K] of the Preamble and [5.2].policies to help recognise use and management practices of Māori in the exercise ofnon-commercial fishing rights, and shall recommend to the Governor-General themaking of regulations pursuant to s 89 of the Fisheries Act 1983 (now s 186 of theFisheries Act).[19] The Regulations, which are in play in these proceedings, therefore sit withinthis broader framework established under the Fisheries Act.13[20] There is also a further deed of settlement entered into this one between theCrown and Ngāi Tahu dated 21 November 1997 and given effect to under theNgāi Tahu Claims Settlement Act 1998.14 This Deed of Settlement similarly recordsa commitment by the Crown to promulgate such regulations in respect of fisheries inSouth Island fisheries waters in particular.15 I understand the Regulations were thendrafted in consultation with all South Island iwi, and specifically intended to be oneimplementation of this commitment.The Regulations[21] The Regulations apply only to that subset of New Zealand fisheries waters thatare South Island fisheries waters.16 As envisaged by reg 17, they provide a process bywhich tangata whenua of a customary food gathering area/rohe moana can apply for amātaitai.17 Regulations 18 and 19 then provide the processes for the Minister to followregarding public notice and consultation. Under reg 20, if the Minister is satisfied thatcertain criteria are met, the Minister must decide to establish an area as a mātaitaireserve. Regulation 22 then provides that the chief executive of the Ministry mustpublish a notice declaring the establishment of the mātaitai, describing its boundariesand specifying any conditions imposed for it, as well as a date on which the declarationof the mātaitai takes effect.13 The Fisheries (South Island Customary Fishing) Regulations 1999 [the Regulations] werepromulgated pursuant to s 186 of the Fisheries Act 1996 on 11 October 1999.14 Te Rūnanga o Ngāi Tahu and Crown Deed of Settlement, 21 November 1997.15 Clause 12.14.11(f) and (g).16 Regulation 3 of the Regulations.17 Regulation 17.[22] Once a mātaitai is established, commercial fishing for species of fisheriesresources subject to the Fisheries Act is prohibited within its boundaries.18 Under reg25, the tāngata tiaki or kaitiaki of a mātaitai may subsequently make bylaws applyinggenerally restricting or prohibiting the taking of fisheries resources subject to theFisheries Act for any purpose that the tāngata tiaki/kaitiaki consider necessary for thesustainable management of the fisheries resources in that mātaitai.[23] However, apart from the prohibitions and restrictions that may be placed onthe taking of fisheries resources managed under the Fisheries Act, declaration of amātaitai under the Act and Regulations has no other effect on activities that may beconducted in the area, including fishing for fisheries resources not subject to theFisheries Act. Importantly, mātaitai do not diminish the rights or interests of ownersof private property adjoining or surrounding waterways within a mātaitai.[24] As will be evident, the legislative history, purpose and scheme of theRegulations reflect the importance of mātaitai for tangata whenua. It thus becomesapparent why the Minister's discretion, in determining an application for a mātaitai, islimited. The Minister is entitled to have regard only to the criteria specified in theRegulations, and if satisfied those mandatory criteria are met, the Minister must grantthe applicant the mātaitai, as they are accordingly entitled to it.Factual backgroundThe applications[25] On 16 September 2015, Te Rūnanga o Kaikōura applied to the office of theMinister of Primary Industries (the Ministry) to extend the already-established OaroMātaitai Reserve, and to establish the Kahutara Mātaitai Reserve and TūtaeputaputaMātaitai Reserve (the applications). As noted, Te Rūnanga o Kaikōura is the papatipurūnanga/tribal council for Ngāti Kuri and representative of tangata whenua holdingmana whenua and mana moana over the relevant rohe.19 Ministerial Services thensent the applications to Fisheries New Zealand by email on 1 October 2015.18 Regulation 24(2).19 The takiwā of Te Rūnanga o Kaikōura centres on Takahanga and extends from Te Parinui o Whitito the Hurunui River and inland to the Main Divide: see affidavit of Mr Scott, above n 2, at [9]–[10]; the Regulations, reg 2(1) definition of "tangata whenua"; Te Rūnanga o Ngāi Tahu Act 1996,[26] Each application sought to establish a reserve over all fishing waters within thedescription provided of each location. The applications set out descriptions of theareas over which mātaitai were sought, as depicted on attached maps. The applicationsalso listed the aims of management for the mātaitai and provided information relevantto the mandatory criteria for the establishment of a mātaitai specified in theRegulations.[27] Mr Nigel Scott, Principal Advisor, Mahinga Kai at Te Rūnanga o Ngāi Tahunotes in his evidence that, although the applications were submitted in 2015, they mustbe seen against background work which commenced at least as early as 2008 as partof the Te Korowai o Te Tai ō Marokura (Te Korowai) process (the Te Korowaiprocess).20 The Te Korowai process, which Mr Scott describes as a collaborative,community-based process, in fact involved members of the applicant. It resulted in adraft strategy setting out proposals for a number of mātaitai, including those that wereeventually applied for and are here under challenge.21 Mr Scott says the draft strategywas widely publicised for consultation, and then a number of submissions werereceived from a range of stakeholders.22 Following consultation, in its final report TeKorowai proposed three marine mātaitai (which were ultimately established underspecial legislation) and noted that Te Rūnanga o Kaikōura would progress applicationsfor the three freshwater mātaitai in a separate application process.23 The report notedthat Te Korowai was supportive of the aspirations for these mātaitai.24 Te Korowaidescribed its conscious decision to follow this strategy in the following way:25Freshwater mātaitaiMātaitai in the lower reaches of the Oaro, Kahutara, and Tutaeputaputa(Conway) Rivers were included in the proposed Strategy. The lower reachesof the river are intimately associated with the marine environment, but areclearly not part of it. Te Korowai sees these freshwater mātaitai as outsideour core remit and does not propose to promote them directly within this finalStrategy. Consequently the local Rūnanga will be submitting the mātaitaiss 6 and 9; and the schedule of the Te Rūnanga o Ngāi Tahu (Declaration of Membership) Order2001.20 Mr Scott describes the significance of the Te Korowai process to the development of the mātaitaiextensively at [19]–[51] of his affidavit, above n 2.21 At [22] and [33].22 At [38].23 At [49]–[50]; and Te Korowai o Te Tai ō Marokura Kaikōura Marine Strategy 2012: Sustainingour sea [Te Korowai Final Marine Strategy] at 37.24 At [50]; and Te Korowai Final Marine Strategy, above n 23, at 37.25 Te Korowai Final Marine Strategy, above n 23, at 37 (emphasis added).applications. We are, however, supportive of Rūnanga aspirations for theseareas and see them as being complementary to integrated planning for themarine environment.We agree with the request in submissions for ongoing dialogue withcommercial eel fishers and support the need to establish the boundaries of theproposed mātaitai on the Oaro, Conway and Kahutara rivers. We will thereforeencourage the Rūnanga to resolve the proposed boundaries for these mātaitaiin consultation with commercial eel fishers. The request for involvement ofthe Kaikōura Zone Committee in the implementation of the river mātaitai, willalso be referred to the Rūnanga.[28] During the consultative process on the draft strategy, the South Island EelIndustry Association (SIEIA) had provided a submission on behalf of commercial eelfishers suggesting further dialogue to involve a clear definition of the boundaries ofthe proposed mātaitai.26 As envisaged in the final report of Te Korowai, Te Rūnangao Kaikōura subsequently held discussions with members of the SIEIA before makingthe applications. It is noted that the applications themselves were ultimatelyaccompanied by a letter of support from five eel quota holders, who collectively hold76 per cent of the quota in the areas of the mātaitai.27Consultation[29] The Ministry published a public notice of the applications in the MarlboroughExpress newspaper on 14 October 2015, the Kaikōura Star newspaper on 4 November2015 and the Saturday Express newspaper on 7 November 2015 (the public notices).The public notices called for written submissions by 18 December 2015 and provideddetails of a public meeting with the local community to be held on 12 November 2015.Public notice of the applications was also published on the Ministry's website andemailed to a number of commercial fishing industry representative groups andorganisations which had previously advised they wished to be informed of all mātaitaireserve applications in the area. The public notices also recorded that a further publicnotice would be advertised after the local community consultation period, invitingwritten submissions from persons who may be affected by the proposed mātaitaireserves.26 At 37.27 Manatū Ahu Matua | Ministry of Primary Industries Kahutara, Oaro (extension) andTūtaeputaputa mātaitai reserve applications, Kaikōura (8 March 2018) [the Mātaitai applicationsbriefing paper] at [26] and [76]–[77].[30] On 12 November 2015, the local meeting was held at Takahanga Marae inKaikōura at 7.00pm. Apart from representatives from the Ngāi Tahu parties and theMinistry, the meeting was attended by only one person from the local community, aMr Ted Howard. At the time, Mr Howard was the Treasurer of Te Korowai, which asnoted had been involved in the development of the applications. Mr Howard was alsothe President of the Kaikōura Boating Club and President of the NZ RecreationalFishing Council.[31] Following this meeting, two submissions from the local community werereceived. I am told these were then considered by delegates of the Minister andtangata whenua.[32] The applicant suggests no other public consultation took place beyond this.The respondents, however, disagree and confirm that a public notice inviting writtensubmissions by 4 April 2016 from persons who might be affected by the proposedmātaitai reserves (pursuant to reg 19(5)) was first published in theMarlborough Express and Kaikōura Star on 24 February 2016, secondly, publishedon the Ministry's website and thirdly, emailed to the commercial fishing industryrepresentative groups referred to above. Following these notices, the Crown says onesubmission was received from fishing interests.The decisions[33] The Ministry then assessed the applications against the criteria specified in theRegulations and drafted a briefing paper for the Minister. This paper recommendedthat the criteria had been met and the mātaitai should be granted.[34] On 14 March 2018, the Minister determined that each of the applications metall of the criteria set out in reg 20(1). These are the decisions now the subject ofreview.[35] On 18 August 2018, the Minister then established the mātaitai by signing thenotices that had been subsequently drafted, namely the Fisheries (Declaration of OaroMātaitai Reserve) Notice 2018, the Fisheries (Declaration of Kahutara MātaitaiReserve) Notice 2018 and the Fisheries (Declaration of Tūtaeputaputa MātaitaiReserve) Notice 2018 (the notices), together with letters appointing TangataTiaki/Kaitiaki for the mātaitai.[36] The notices were published in the Gazette on 12 September 2018. Furthernotification of the extension and establishment of the mātaitai reserves andappointment of Tangata Tiaki/Kaitiaki was published in the Marlborough Express on14 September 2018. The mātaitai then took effect on 10 October 2018.Subsequent concerns raised by individuals and groups associated with the applicant[37] The applicant claims it is only after this point that its members and other locallandowners became aware of the existence of the mātaitai. It says these individualswere frustrated and disappointed that a proper consultation process had not beenfollowed, and they also had various concerns with the mātaitai themselves.[38] Following the commencement of the mātaitai, the Ministry and the Minister'soffice engaged with certain individuals and groups who expressed concerns about themātaitai. Some of these parties are associated with the applicant. These individualsand groups were concerned that the mātaitai affected their private land and propertyrights.[39] The Crown says the Ministry and the Minister's office then provided detailedinformation to the individuals concerned, including an explanation that mātaitai onlyapplied to fisheries waters and did not affect titles to private land or accessarrangement rights.The mātaitai[40] The boundaries of each mātaitai are described in its respective notice. TheOaro Mātaitai Reserve covers approximately 3,074 hectares of land, the KahutaraMātaitai Reserve covers approximately 5,414 hectares of land, and the TūtaeputaputaMātaitai Reserve covers approximately 35,867 hectares of land. The Ngāi Tahu partiessay that waterways within the three mātaitai reserves combined have an area ofapproximately 2,000 hectares.[41] According to the Ngāi Tahu parties, the boundaries of the mātaitai reservesencompass areas within the takiwā of Te Rūnanga o Kaikōura. They say also themātaitai reserves lie wholly (in the case of the Oaro Mātaitai Reserve) or largely (inthe case of the Kahutara Mātaitai Reserve and Tūtaeputaputa Mātaitai Reserve) withinland which Ngāi Tahu requested to have reserved to it when it sold its land to theCrown under the 1859 Kaikōura Deed of Purchase. That request had been denied atthat time by the Crown.Grounds of review[42] In this proceeding, the applicant brings its challenge to the Minister's decisionsunder three heads of review.[43] The first ground of review is that the notices are void for uncertainty. Theapplicant says the extent of the mātaitai reserves under the various notices is incapableof being ascertained, and in particular that:(a) none of the waters within the boundaries of the mātaitai reserves qualifyas "New Zealand fisheries waters" under the first three definitions ofthat term;(b) the notices include references to terms that are not defined in thenotices, the Regulations or the Fisheries Act; and(c) the geographical extent of the mātaitai reserves is not identified in thenotices and is not capable of being ascertained.[44] The second head of challenge is that the Minister made an error of law inmaking the decisions because the evidence before the Minister was not reasonablycapable of satisfying him that each of the grounds necessary for declaring a mātaitaireserve was met, namely that the areas of the mātaitai reserves were identified fishinggrounds or that they were of a size appropriate to effective management by tangatawhenua.[45] The third ground of review is that the Minister failed to comply with theconsultation requirements in the Regulations and in doing so breached natural justice.Relief sought[46] By way of relief, the applicant seeks declarations that the Minister's decisionswere invalid and an order quashing or setting aside the resulting notices.[47] Following this, the applicant says the Minister would need to reconsider theapplications for the mātaitai reserves in light of this Court's findings, and carry out thecorrect consultation process before making decisions on those applications.[48] By way of additional response, the Ngāi Tahu parties have raised as anaffirmative defence that even if a ground of appeal was made out and relief considered,the Court should exercise its discretion and decline relief on the basis of delay on thepart of the applicant in bringing these proceedings and the futility of the orders.Respondents' positions[49] In opposing the review application here, the Crown says the Minister'sdecisions were lawful. The Crown contends that in making the decisions, the Minister:(a) had regard to the mandatory criteria specified in the Regulations, tookinto account information relevant to those mandatory criteria, anddisregarded irrelevant and impermissible considerations;(b) made the decisions, which were reasonably open to the Minister, on thebasis of evidence which appropriately supported the decisions; and(c) complied with the prescriptive consultation requirements under theRegulations before the decisions were made.[50] The Crown maintains the Minister therefore complied with all proceduralrequirements. Whether the Minister was satisfied the criteria under the Regulationswere met, by what margin, and the weight given to matters considered as part of thatassessment, the Crown says, are matters for the Minister as the decision-maker. TheCrown suggests the application for review is focused on the merits of the matter andthat these and the concerns raised by the applicant are not proper bases for judicialreview of the Minister's decisions.[51] Similarly, the Ngāi Tahu parties for their part submit that there is no basis toreview the decisions. They say the notices are sufficiently clear and those affectedwill find the boundaries of the mātaitai readily discernible. They argue too that thecriteria for the establishment of a mātaitai were satisfied, and these in turn are to beinterpreted according to their tikanga. They maintain too the requirement that the areaproposed for a mātaitai be an "identified traditional fishing ground of a sizeappropriate to effective management by the tangata whenua" equates to their conceptof mahinga kai, and the evidence before the Minister was sufficient to establish that.Finally, the Ngāi Tahu parties contend that consultation was carried out in accordancewith the regulatory requirements, but in any case the mātaitai were developed overallin conjunction with a wider, community-led fisheries project which involvedconsiderable consultation.Judicial review principles[52] I will set out where relevant the applicable principles of judicial review in mysubstantive analysis which follows. It should be noted at the outset however thatjudicial review is a supervisory jurisdiction.28 It is not a means of appealing a decisionand it is not the Court's role to determine what decision should have been made.Rather, as Cooke J stated in Patterson v District Court, Hutt Valley:29Most judicial review involves the Court assessing whether a decision is madein accordance with the express and implied requirements of the empoweringinstrument, both in terms of the substantive decision and the proceduresfollowed to reach it.[53] In the absence of a reviewable procedural error or substantiveunreasonableness, the Minister's decisions cannot be overturned.28 Patterson v District Court, Hutt Valley [2020] NZHC 259 at [14].29 At [14].First ground of review — uncertainty[54] The first ground of review the applicant raises is that the notices are void foruncertainty. The applicant says citizens and landowners have a right to assess clearlywhat a mātaitai covers so they can regulate their actions accordingly. The drafting ofthe notices here, it is argued, makes it uncertain what is covered by the mātaitai.[55] Uncertainty is concerned with a lack of ascertainable meaning, where theordinary tools of interpretation are unable to resolve the issue.30 The applicant saysthat under the notices, the extent of the mātaitai is incapable of being ascertained,because:(a) the definition of "South Island fisheries waters" is so broad that it isimpossible to apply in practice and requires investigation and scientificassessment;(b) the notices include references to terms that are not defined; and(c) the descriptions of the boundaries of the mātaitai are unclear.Approach to analysis[56] The notices are subordinate legislation as instruments issued underempowering legislation, namely the Regulations and the Fisheries Act. Subordinatelegislation is presumptively valid. The onus is on the party challenging thesubordinate legislation to establish that it is outside the scope of its empoweringlegislation.31 An instrument may be outside that scope where it cannot be given anascertainable and reasonable meaning, because Parliament cannot be taken to haveauthorised such ambiguity.32 As the House of Lords has held, "[a] regulation whose30 Graham Taylor Judicial Review: A New Zealand Perspective (4th ed, LexisNexis, Wellington,2018) at [14.32].31 Edwards v Onehunga High School Board [1974] 2 NZLR 238 (CA) at 660–661; and see RossCarter, Jason McHerron and Ryan Malone Subordinate Legislation in New Zealand (LexisNexis,Wellington, 2013) at [12.0.4(i)].32 Cropp v Judicial Committee [2008] NZSC 46, [2008] 3 NZLR 774 at [40]; and see TransportMinistry v Alexander [1978] 1 NZLR 306 (CA) at 311.meaning is so vague that it cannot be ascertained with reasonable certainty cannot fallwithin the words of delegation."33[57] When the Court assesses whether subordinate legislation is valid, it must firstconstrue the meaning of the empowering provision and the "scope of the authorityconferred by Parliament and the purpose for which those powers were conferred".34Next, it must establish the meaning of the subordinate legislation to finally determinewhether it complies with the empowering legislation. The focus is of course on thelegal limits of the empowering legislation, not the merits of its use in a particularcase.35The empowering legislation[58] As I have noted above, the notices are instruments issued under theRegulations, which are in turn promulgated under s 186 of the Fisheries Act. I havedetailed these provisions above. In terms of the meaning of these provisions, the scopeof the authority they confer and the purpose for which they were conferred, I find thatin combination they do a number of things. They recognise and provide for customaryfood gathering by Māori, and the special relationship between tangata whenua andplaces of importance for customary food gathering, including tauranga ika andmahinga mātaitai, (to the extent that such food gathering is neither commercial in anyway nor for pecuniary gain or trade), and they do so first, in a manner that providesfor the sustainable utilisation of fisheries resources, secondly, that gives effect to theFisheries Settlement Act, and thirdly, that is consistent with te Tiriti and the Crown'sobligations in respect of te Tiriti.[59] When mātaitai are established, commercial fishing (for species subject to theFisheries Act) is prohibited within their boundaries. Bylaws may subsequently bemade applying generally to all persons fishing within a mātaitai. These may imposerestrictions or prohibitions relating to taking fisheries resources subject to theFisheries Act in the whole or parts of the mātaitai. Aside from the prohibitions and33 McEldowney v Forde [1971] AC 632 (HL) at 665.34 Unison Networks Ltd v Commerce Commission [2007] NZSC 74, [2008] 1 NZLR 42 at [50].35 New Zealand Driver's Association v New Zealand Road Carriers [1982] 1 NZLR 374 (CA) at388; and Unison Networks Ltd v Commerce Commission, above n 34, at [54].restrictions that may be placed on the taking of these fisheries resources managedunder the Fisheries Act, the Act and the regulations do not allow for mātaitai to haveany other effects.Are the notices uncertain?[60] As I see it, the notices are presumptively valid. For them to be void, they mustbe shown to fall outside the scope of their empowering provision. As the High Courtstated in University of Auckland v Auckland Council, "it is trite that regulations maybe invalid for ambiguity".36 The applicant says the notices are uncertain, and thereforeambiguous, in three respects. I assess each of these in turn.Use of the term "South Island fisheries waters"[61] It is accepted by all parties that the notices define the mātaitai reserves ascomprising the watercourses named in each notice and any "South Island fisherieswaters" within the set boundary lines described.[62] The phrase "South Island fisheries waters", which is used in the notices, is alsoused in the Regulations. The Regulations define "South Island fisheries waters" withreference to "New Zealand fisheries waters". The definition of the phrase "NewZealand fisheries waters" is contained in primary legislation, namely the Fisheries Act.As a preliminary point, therefore, it is evident that the meaning of "South Islandfisheries waters" must be interpreted in accordance with the definition of "NewZealand fisheries waters" as contained in the Fisheries Act.[63] The definition of "New Zealand fisheries waters" as contained in the FisheriesAct is as follows:37New Zealand fisheries waters means—(a) all waters in the exclusive economic zone of New Zealand:(b) all waters of the territorial sea of New Zealand:(c) all internal waters of New Zealand:36 University of Auckland v Auckland Council [2017] NZHC 1150 at [14].37 Fisheries Act, s 2 definition of "New Zealand fisheries waters".(d) all other fresh or estuarine waters within New Zealand where fish,aquatic life, or seaweed that are indigenous to or acclimatised in NewZealand are found[64] The applicant says that none of the waters within the boundaries of the mātaitaireserves qualify as "New Zealand fisheries waters" under the first three definitions ofthat term. The applicant says that the fourth definition would require a citizen to carryout a scientific assessment of what aquatic life is, and then test the relevant water inorder to ascertain whether there is currently aquatic life in it. It is impossible,therefore, the applicant argues, for a citizen to look at any particular watercourse andknow whether it is considered "New Zealand fisheries water".[65] The applicant also says the notices are drafted so imprecisely that for example,the definition would cover water taken from streams for troughs, water tanks and useinside people's homes, as well as water retention ponds and dams, which it says wasclearly not the intention of the legislature.[66] A key rationale for requiring certainty is that where an instrument is intendedto regulate citizens' conduct, it should give "fair notice to an individual of theboundaries of what [they] may do without attracting criminal liability".38 As LordCooke stated, "legal provisions which interfere with individual rights must beformulated with sufficient precision to enable a citizen to regulate [their] conduct."39[67] The only immediate consequence of the establishment of a mātaitai is thatcommercial fishing for fisheries resources subject to the Fisheries Act is prohibitedwithin its boundaries. Commercial fishing is therefore the only conduct the noticesseek to regulate. The meaning of the notices, therefore, must be sufficiently clear sothat, amongst other things, someone who takes fisheries resources in a manner thatamounts to commercial fishing, is informed that the taking of such is prohibited withinthe boundaries of the mātaitai.38 New Zealand Council of Licensed Firearms Owners Inc v Minister of Police [2020] NZHC 1456at [100], citing R v Copeland [2020] UKSC 8, [2020] 2 WLR 681 at [28].39 Observer Publications Ltd v Matthew [2001] UKPC 11 at [28].[68] I am satisfied the use of "South Island fisheries waters" sufficiently does this.I accept that, to people likely to be affected by this restriction, namely those involvedin commercial fishing, the meaning of the phrase "South Island fisheries waters", andthe waters within the boundaries of the mātaitai it therefore applies to, is readilyascertainable. Those involved in commercial fishing will be well-aware of the mātaitainow in place. The definition of "fisheries waters" as above, in my view, is notsurprising. I am also of the view that the key phrases within the relevant definition,namely "fresh or estuarine waters", "fish, aquatic life, or seaweed" and "indigenous toor acclimatised in", are similarly clear. Overall, I am satisfied that those likely to beaffected, for example someone involved or potentially involved in commercial fishing,will be able to understand what they are prohibited from doing within the boundariesof the mātaitai, and that this is the main point.[69] In any case, I note the mātaitai have been operational for almost four years nowand the applicant has not directed me to any evidence from any commercial fishers (oranyone else) suggesting a confusion as to what the phrases at issue here cover. I alsonote that the applications were accompanied by a letter of support from commercialfishers who collectively held 76 per cent of the quota for the relevant QMS species inthe areas of the mātaitai, a significant group of those likely to be affected by anymeasure.40[70] For completeness I need to add that I do not accept the applicant's assertionthat an individual will need to carry out scientific assessment and testing in order todetermine whether their conduct will amount to an offence. Commercial fishers, inmy view, are well able to assess whether a particular waterway or part of a particularwaterway contains fish, aquatic life or seaweed and is thus "New Zealand fisherieswaters".[71] I also do not accept, as the applicant appears to suggest, that any reasonablecommercial fisher might attempt to take fish, aquatic life or seaweed from farm40 Indeed, as I understand the position, an area within the external boundaries of the KahutaraMātaitai Reserve was excluded from the mātaitai following negotiation with the SIEIA,representing commercial eel fishers.holding tanks, water troughs or repositories of water on someone's property such as aswimming pool or household toilet.[72] It is noted as well at this point that no bylaws restricting the taking of fisheriesresources (beyond this commercial fisheries aspect) or of any kind have been madeyet. If bylaws are to be made in future, they may — or may not — define the areaswhere such taking is prohibited in a different manner. In any case, any analysis as towhether the notices are sufficiently clear to such non-commercial fishers is certainlypremature.[73] I am satisfied the meaning of the term "South Island fisheries water" in thenotices is readily ascertainable, particularly by those whose conduct is prohibited bythe notices, namely those involved in commercial fishing. This first uncertaintyground of judicial review fails.Use of undefined terms[74] Secondly, the applicant says the notices include references to terms that are notdefined in the notices, themselves, the Regulations or the Fisheries Act. They point inthis respect in particular to the use of the words "catchment" and "tributaries".[75] Although terms such as "catchment" and "tributary" are not defined in thenotices or either of the empowering legislation, I am satisfied the meaning of theseterms can readily be ascertained in accordance with ordinary principles ofinterpretation. In particular, I accept that terms such as "catchment" and "tributary"are well understood in common parlance and particularly so in fisheries andenvironmental management contexts. I see no difficulties arising with the use of theseterms.[76] Indeed, as the applicant itself acknowledges, some such water bodies withinthe boundaries of the mātaitai will be present only at certain times of the year, andothers will undergo seasonal fluctuations in terms of their length or their breadth.41This does not, however, render the use of the terms at issue here invalid. As a matter41 Affidavit of Malcolm Gordon, 8 March 2022, at [34].of common sense, the extent of the South Island fisheries waters will be subject tochange from time to time based on a range of factors, such as rainfall. However, thenotices, in my view, are clear in their effect: when South Island fisheries waters arepresent within the boundaries of the mātaitai, they will be subject to any prohibitionsor restrictions applying to the mātaitai under the Regulations; when they are notpresent, they could not and will not be subject to such restrictions. The use of termssuch as "catchment" in fact effectively captures such changes.[77] As I see it, no issue arises here with the use in the notices of undefined termssuch as "catchment" or "tributary".Descriptions used to define the boundaries of the mātaitai[78] The third way in which the applicant says the notices are uncertain relates toits contention that the geographical extent of the mātaitai reserves is not identified inthe notices and it is not capable of being ascertained. The applicant argues that, giventhe notices set the boundaries of the mātaitai reserves by reference to land-basedboundary lines, these have no apparent connection to, and are remote from, anythingthat could be "New Zealand fisheries waters". It says that with such uncertaindescriptions, which include land-based landmarks, such as roads, it is impossible fora citizen to ascertain the precise boundary of a mātaitai.[79] This is evident, too, according to the applicant, when the notices are comparedwith other mātaitai that have been declared over inland waters in the South Island.The applicant says that on each such other occasion, the Minister has defined theboundaries by reference to named watercourses and provided that the mātaitai ceasesat a particular and identifiable point along the watercourse. The applicant notes thatco-ordinates have been used to specify the sections of a watercourse that are included.In the present case the applicant argues it is not clear in respect of these mātaitai atwhat point any particular waterway ceases to be part of the mātaitai. The Minister,according to the applicant, should have taken the same care here as that taken for othermātaitai and drafted the notices to clearly reflect what waterways were included ineach mātaitai.[80] At the outset, I do accept that defining the outer limits of a mātaitai withreference to such features as roads may not be as precise a definition as otherwise byreference to GPS co-ordinates. However, I consider landmarks may often be of greateruse and clarity for those operating on the ground whose conduct is sought to beregulated. That obviously includes commercial fishers. Moreover, there is no explicitrestriction requiring the Minister to declare the boundaries of a mātaitai by referenceto GPS co-ordinates. I accept here that the Minister was entitled to define theboundaries of the mātaitai by reference to other (reasonably identifiable andascertainable) features such as roads. I also note other mātaitai referred to by theapplicant do contain other comparable descriptions to those used in the present notices.[81] That the boundaries of the mātaitai in the present case are generally muchbroader and wide-ranging than the combined area of the waterways within the mātaitaithemselves is largely, as I see it, in order to capture the various waterways, includingtributaries. It must be remembered too that the mātaitai only prohibit conduct inrespect of the "fisheries waters" themselves. It is acknowledged that other mātaitaiestablished have often defined the mātaitai in question with particular reference to thewaterways themselves. However, in my view this does not render invalid the use ofan alternative method of specifying which waters are subject to restrictions, namelyby providing a description of the boundaries within which the waters in question lie.42[82] I am satisfied here the descriptions used in the notices are sufficiently clear toallow the external boundaries of the mātaitai in this case to be ascertained.Conclusion on first ground of review[83] Finally, in relation to each aspect in which the notices are alleged to beuncertain, I note there has been no evidence before me to suggest that commercialfishers have found it difficult to understand the meaning of the notices. The mātaitaihave been in place for several years now and yet I received no evidence thatcommercial fishers had been unable to ascertain what waters were subject torestrictions, what the terms in the notices meant or what the boundaries of the mātaitai42 It is wrong on its face for the applicant here to say, as it has done, that the mātaitai reserves in thiscase are objectionably huge totalling 44,000 hectares. The reserve areas as I have noted are in factonly over "fisheries waters" within that total area, a very much smaller area.were. The boundaries of the mātaitai are defined in my view in a way that issufficiently precise for those parties affected and whose conduct the notices seek toregulate. Here, as I have noted, no bylaws have been made for these mātaitai andaccordingly it is only commercial fishing that is prohibited within their boundaries.And I consider that if there were to be a lack of clarity in the notices, there would havebeen some evidence from those affected as to this.[84] For all these reasons, I am satisfied the notices are sufficiently clear and fallsquarely within the scope of their empowering legislation. I do not accept that theyare void for uncertainty.[85] The first ground of review is dismissed.Second ground of review — lack of evidential foundation[86] The second head of challenge is that the evidence before the Minister was notreasonably capable of satisfying him that each of the grounds necessary for declaringa mātaitai reserve was met.[87] In order to declare a proposed area a mātaitai reserve, the Minister must besatisfied that each of the particular grounds under reg 20(1) of the Regulations is met.The applicant says the Minister did not have sufficient probative evidence to besatisfied of reg 20(1)(c), that the areas of the mātaitai were identified traditional fishinggrounds and of a size appropriate to effective management by tangata whenua.[88] Regulation 20(2) provides that the Minister must decline the application if theyconsider it does not meet one or more of the criteria set out in reg 20(1). The applicantsays the Minister therefore made an error of law in making the decision to establishthe areas as mātaitai notwithstanding there being a lack of probative evidence whichwas reasonably capable of satisfying him that this ground was met.Legal principles relating to an error of law[89] As the Supreme Court has described the position in relation to an error of law:4343 Bryson v Three Foot Six Ltd [2005] NZSC 34, [2005] 3 NZLR 721.[26] An ultimate conclusion of a [decision-maker] can sometimes be soinsupportable — so clearly untenable — as to amount to an error of law:proper application of the law requires a different answer [90] That will be the position only in the rare case when:44(a) "there is no evidence to support the determination"; or(b) "the evidence is inconsistent with and contradictory of thedetermination"; or(c) "the true and only reasonable conclusion contradicts thedetermination".[91] As this Court has previously stated in relation to an error of law in a judicialreview context:45Where a decision is so insupportable or untenable that proper application ofthe law requires a different answer, it is unlawful because it is unreasonable.That may involve the adequacy of the evidential foundation of a decision orthe chain of logical reasoning in the application of the law to the facts.[92] Finding an error of law is accordingly (and rightly) a very high threshold.46 Itis only if the finding was not "open" to the decision-maker,47 or in other words wasnot a "permissible option", that this ground will be made out.48Evidence — mandatory and impermissible considerations[93] The relevant evidence on which the Court's assessment of the Minister'sdecision can be made is that material that was before the Minister at the time of the44 At [26], citing Edwards v Bairstow [1956] AC 14 at 36.45 Hu v Immigration and Protection Tribunal [2017] NZHC 41, [2017] NZAR 508 at [2] per PalmerJ.46 Bryson v Three Foot Six Ltd, above n 43, at [27].47 Lewis v Wilson and Horton Ltd [2000] 3 NZLR 546 (CA).48 Bryson v Three Foot Six Ltd, above n 43, at [27].decisions.49 The executive cannot rely on evidence after the fact of its decision.50 Asthe High Court has previously stated:51The decision must stand or fall on the basis on which it was made. Neither itsvalidity or invalidity can depend upon subsequent material which did not playa part in the formulation of the decision itself.[94] I note, however, that the knowledge of officials within the Ministry tasked withadvising the Minister as the decision-maker may be attributed to him in that role.52Those officials are required to provide the relevant information to the decision-makerfairly and accurately and in a manner that ensures the Minister may directly considerthe material and assess whether further information is necessary.53 Thus, the relevantmaterial in this case includes the evidence that was considered by officials in assessingthe applications and preparing their advice and recommendations to the Minister, atleast to the extent that evidence was relied upon to do so.[95] The extent of the material to be considered also depends on what the Ministeris required and permitted to assess. The Regulations are clear that the reg 20 criteriathat the Minister must take into account in deciding to establish an area as a mātaitaiare also the only criteria the Minister may take into account in making that decision.54These are the mandatory relevant considerations in this case, and any considerationsbeyond these are impermissible.[96] The Regulations do not expressly limit what factual matters are relevant inconsidering whether the mandatory relevant criteria are met. The decision-makermust, for example, consider those facts so plainly relevant to the mandatoryconsiderations that Parliament would have intended them to be taken into account, anda reasonable decision-maker would not fail to do so.55 A decision-maker, though, must49 Taylor v Chief Executive of the Department of Corrections [2015] NZCA 477, [2015] NZAR 1648at [33].50 At [33].51 Te Runanga o Ngati Pikiao v Minister for the Environment HC Te Whanganui-a-Tara | WellingtonCP 113/96, 15 Hune | June 1999 at [29] per Gallen J.52 Air Nelson v Minister of Transport [2008] NZCA 26, [2008] NZAR 139 at [53]–[54], citingCarltona Ltd v Commissioner of Works [1943] 2 All ER 560 (CA).53 CREEDNZ Inc v Governor-General [1981] 1 NZLR 172 (CA) per Cooke J at 183; and NewZealand Steel Ltd v Minister of Commerce and Consumer Affairs [2021] NZHC 966 at [481].54 Regulation 20(1) of the Regulations.55 New Zealand Fishing Industry Association Inc v Minister of Agriculture and Fisheries [1988] 1NZLR 544 (CA) at 552.not consider those matters that cut across or thwart the purpose of the statutoryinstruments.56 The factual matters which the Minister is permitted and not permittedto consider must be identified in light of the scheme and purpose of the wider statutoryframework. The weighting of those matters is of course a matter for thedecision-maker.57Correct approach to the reg 20 requirements[97] Because mātaitai may affect commercial and recreational fishers as well ascustomary fishers, the criteria specified in reg 20 acknowledge the interests andconnection of both tangata whenua and other fishing interests in the fisheries area overwhich a mātaitai is sought.[98] The applicant is correct to say that the Minister cannot act outside theRegulations to create a situation which could not reasonably be considered necessaryor expedient for the purposes of the empowering legislation.58 It is also plainly correct,as the applicant rightly identifies, that the power granted to the Minister to establishmātaitai must be used to promote the objects of the Fisheries Act and the Regulations.The purpose of the Fisheries Act, as stated in s 8, is to "provide for the utilisation offisheries resources while ensuring sustainability." Section 5 provides that the Act isto be "interpreted, and all persons exercising or performing functions, duties, orpowers conferred or imposed by or under it shall act, in a manner consistent with— (b) the provisions of the [Fisheries Settlement Act]." Regulation 3(3) of theRegulations similarly provides that "[a]ny person exercising functions, duties, orpowers under these regulations must do so in accordance with the provisions of the[Fisheries Settlement Act]."[99] In combination, these provisions make it clear that the objects of theFisheries Act and the Regulations and the purposes of the empowering legislation areto recognise and provide for customary food gathering by Māori, and the special56 Unison Networks Ltd v Commerce Commission, above n 34, at [53]; and see Genesis Power Ltd vGreenpeace New Zealand Inc [2007] NZCA 569, [2008] 1 NZLR 803 at [43](a)].57 Te Rangi v Jackson [2015] NZCA 490, [2015] NZAR 1946 at [28]; and North TaranakiEnvironment Protection Association Inc v Governor-General [1982] 1 NZLR 312 (CA) at 316.Unless, of course, the weight attached to a particular factor is so disproportionate as to render thedecision unreasonable: Waitakere City Council v Lovelock [1997] 2 NZLR 385 (CA).58 Transport Ministry v Alexander, above n 32, at 309.relationship between tangata whenua and places of importance for customary foodgathering, including tauranga ika and mahinga mātaitai, in a manner that (a) providesfor the sustainable utilisation of fisheries resources; (b) gives effect to the FisheriesSettlement Act; and (c) is consistent with te Tiriti and the Crown's obligations underte Tiriti. The prescriptive requirements of reg 20, including reg 20(c), must beconsidered and followed in accordance with these objects and purposes.[100] In particular, given the subject matter, the statutory context and the purposesof the empowering legislation, reg 20(c) must be interpreted in light of te Tiriti andtikanga Māori. The Supreme Court has made it clear that statutory terms describingthe interests of tangata whenua must "not only be viewed through a Pākehā lens" butalso understood (or perhaps sometimes solely understood) through the lens oftikanga.59 That was in reference to terms expressed in English. It can only be moreso the case for kupu Māori. Indeed, as the Environment Court stated as far back as2002, "[w]e start with the proposition that the meaning and sense of a Maori valueshould primarily be given by Maori."60[101] In fact, the views of tangata whenua may be determinative in some contexts.Tauranga Environmental Protection Society Inc v Tauranga City Council concerned aproposal to relocate a transmission pole next to the marae of the hapū Ngāti Hē.61 Infinding that proper application of the law required a different answer from that reachedby the Environment Court, Palmer J stated:62 when the considered, consistent, and genuine view of Ngāti Hē is that theproposal would have a significant and adverse impact on an area of culturalsignificance to them and on Māori values ... it is not open to the Court to decideit would not.[102] The views of the hapū in such circumstances, his Honour said, were"determinative of those findings."63 It is unnecessary for me to make such a definitivefinding however in the circumstances of the present case. But I do emphasise here the59 Trans-Tasman Resources Ltd v Taranaki-Whanganui Conservation Board [2021] NZSC 127,[2021] 1 NZLR 801 at [297] per Williams J.60 Ngati Hokopu Ki Hokowhitu v Whakatane District Council (2002) 9 ELRNZ 111 at [43].61 Tauranga Environmental Protection Society Inc v Tauranga City Council [2021] NZHC 1201,[2021] 3 NZLR 882.62 At [65].63 At [65] (emphasis added).importance, when considering the meaning of the criteria in the Regulations, of whatmeaning the tangata whenua, in whose interests the regulations are made, ascribe tothem.Analysis — identified traditional fishing ground[103] In turning to my analysis of this ground of challenge, I first consider theapplicant's submission that the evidence before the Minister was not reasonablycapable of satisfying him that the areas of the mātaitai reserves were identifiedtraditional fishing grounds.[104] The applicant argues here that there was no evidence before the Minister todemonstrate that the full extent of the proposed mātaitai were traditional fishinggrounds. It says the documents referenced in the applications only demonstratecustomary use by the tangata whenua of the lagoons and the very lower reaches of theOaro, Kahutara and Conway (Tūtaeputaputa) Rivers. This, it is said, was aninsufficient basis for the Minister to be satisfied the full extent of the areas of theproposed mātaitai were identified traditional fishing grounds.[105] As noted, reg 20(1)(c) must be interpreted and applied in the manner describedabove , that is in accordance with the objects and purpose of the Act and Regulations,and viewed from a tikanga lens. In the applications themselves as well as in theevidence before me, it is clear the Ngāi Tahu regard the term "traditional fishingground" as synonymous with their own concept of mahinga kai. It is reductive tosuggest, as the applicant here appears to do, that the mahinga kai is confined tospecified and pinpointed fishing areas. Rather, the evidence before the Minister, whichincluded that provided with the applications and considered by officials of theMinistry, clearly indicated a long history of customary fishing in the areas proposedfor the mātaitai. It is not necessary, as I see it, to traverse the evidence of the use ofthe three river catchments that was provided to the Minister in its entirety. However,all the evidence clearly demonstrated the relationship of Ngāi Tahu and Ngāti Kuriwith the areas in terms of, among other things:(a) being traditional places for gathering kai, including tuna and pātiki,which would then be taken back to the kāinga and shared amongwhānau;(b) eeling of the areas at different times of the year;(c) traditional fishing practices being applied in the areas; and(d) the tikanga of kaitiakitanga responsibilities over the areas passed downthrough the generations.[106] In addition, the material before the Minister demonstrated:(a) the recognition of mahinga kai values of certain areas within themātaitai areas as traditional fishing grounds for Ngāi Tahu and NgātiKuri;(b) the significance of the lower reaches and designation as possible rāhuiareas in the mid-1980s; and(c) the identification over time of all three river catchments as areas to beconsidered for designation as mātaitai.[107] Given the material that was before the Minister (including via his delegates),the Minister's finding that the areas were mahinga kai, or, in terms of reg 20(1)(c),identified traditional fishing grounds, is hardly surprising. And, importantly forpresent purposes in terms of the statutory test, this was a finding that was "open" tothe Minister on the evidence before him. Accordingly, I am satisfied the informationbefore the Minister was reasonably capable of satisfying him that the areas wereidentified traditional fishing grounds.[108] It also appears that the applicant and the Ngāi Tahu parties have differentunderstandings of the terms "catchment" and "lower reaches" and have understoodthem in different ways throughout these proceedings and indeed the entire process. Insummary it would appear that the Ngāi Tahu parties initially planned to apply for amuch greater area to be declared as mātaitai (the "entire river catchments"). Followingdiscussion of the mātaitai through the Te Korowai process, and on the recommendationof Te Korowai that the Ngāi Tahu parties work out the detail of the boundaries for themātaitai with commercial eel fishers, it appears too that the Ngāi Tahu partiessubsequently decided to reduce the size of the boundaries ultimately selected for theirapplications to the "lower reaches" of those catchments. Thus there does appear tohave arisen some misunderstanding between the parties as to what areas in theapplications the "lower reaches" might in fact refer to. It appears this term was usedby the Ngāi Tahu parties to encompass greater areas proposed for the mātaitai thanperhaps apprehended by the applicant. The matter of greatest importance to thepresent proceedings, of course, is that it is less clear, however, that the Minister wasoperating under the same misunderstanding.[109] The applicant also takes issue with the "probative value" of the evidence thatwas available to the Minister at the time he made the decisions. In turn, it has advancedevidence for this judicial review application from a Dr Jellyman to suggest that themātaitai areas could not be accepted as identified traditional fishing grounds. Withrespect to Dr Jellyman, however, I place little weight in this evidence. There areseveral reasons for this. This includes the fact this evidence was not before theMinister at the time and could be said to amount to opinion and legal submission.Most significant, however, is that notwithstanding Dr Jellyman's experience andqualifications as a fisheries scientist, he is not qualified as a social scientist, historianor person with expertise in mātauranga in this area or in the nature and extent of Māoritraditional fishing customs or practices. By contrast, in the context of the mātaitaiapplications and the wider legislative scheme, again, the evidence of the tangatawhenua themselves was of predominant importance, if not determinative of thesematters in itself.[110] Overall, I conclude here that I am satisfied the information before the Ministerwas reasonably capable of satisfying him that the areas in question were identifiedtraditional fishing grounds. This finding, in my view, was open to him to make and inno way was unreasonable.Analysis — size appropriate to effective management[111] The applicant then goes on to suggest that the evidence before the Minister wasnot reasonably capable of satisfying him that the areas of the mātaitai reserves wereof a size appropriate to effective management by the tangata whenua. The applicantin this respect points to the large total area of the mātaitai reserves (a total area of44,355 hectares), much of which it seems has no public access and is difficult to accesson account of the terrain, being what they say is rugged high country.[112] On the basis of the expert evidence of Dr Donald Jellyman, the applicantcontends that management of the fishery area does not require inclusion of thecatchment in its entirety. It says many of the waters in the mātaitai will not containsuitable habitats for eels and the inclusion of the many small tributaries in the mātaitaireserves is not necessary for sustainable management. In this respect the applicantpoints to the fact that no other mātaitai to date cover entire catchments.[113] Because there is no public access to large parts of the waterways covered bythe mātaitai, the applicant also maintains it will be impossible for the kaitiaki tomanage the fishery. In order to manage the fishery, the kaitiaki must monitor howpeople are fishing within the mātaitai so they can ensure that no commercial fishing istaking place and any bylaws made are being followed. The applicant suggests thekaitiaki will not have sufficient knowledge first, about what is happening within themātaitai and secondly, therefore, whether bylaws will need to be enacted because theywill not be able to assess the full extent of the mātaitai.[114] The respondents forcefully refute these suggestions.[115] The applicant's focus here is a lack of access to the waterways. However,accessibility, as the respondents point out, is not determinative of whether effectivemanagement by tangata whenua is possible. The management tools available to theTangata Tiaki/Kaitiaki under the Regulations include recommending bylaws to restrictor prohibit the taking of fisheries resources, requesting regulations be made to allowlimited commercial fishing, and issuing and monitoring customary fishingauthorisations. As I see it, these do not necessarily require having physical access toall areas under their management.[116] Rather, the management of the mātaitai will be more highly dependent on theknowledge of tangata whenua of the area and the fisheries resources within it, and theresources and support available to Tangata Tiaki/Kaitiaki and tangata whenua. Interms of knowledge, as was noted in the briefing paper to the Minister, it seems theNgāi Tahu parties have a good knowledge of the areas and considerable experienceand resources in the fisheries space. Given the involvement of Ngāi Tahu here, it issaid there is also no concern as to a lack of resources or support. Be that as it may, inany case reg 38 provides that the Minister must provide to any Tangata Tiaki/Kaitiaki"such information and assistance as may be necessary for the proper administration of[the Regulations]". Fisheries New Zealand is also to continue its compliance andenforcement functions, as well as to advise and assist Tangata Tiaki/Kaitiaki with anyfisheries management issues.64 Tangata Tiaki/Kaitiaki, as I understand the position,have also been managing customary fishing in the broader rohe moana, including theareas of the mātaitai, under the Regulations since October 2000, without anysuggestion that a lack of access has compromised their ability to do so.[117] I therefore accept that Tangata Tiaki/Kaitiaki appointed to represent tangatawhenua can readily manage the mātaitai and fisheries resources within them withouthaving access to every part of the applicable fisheries waters.65 As the secondrespondents noted in their submissions:66The fact that private ownership of land adjoining the waterways that comprisethe mātaitai has limited the ability of Ngāi Tahu to access parts of thosewaterways has not diminished their significance as mahinga kai.[118] I find, therefore, that there was sufficient evidence before the Minister tosupport his determination that the areas in question were of a size appropriate foreffective management by the tangata whenua. The size of the mātaitai was relevantonly as part of one of the criteria under reg 20(1). There is no limit on the size of amātaitai other than the requirement it can only cover "part of" a customary foodgathering area/rohe moana. I am also satisfied the Minister properly disregarded thesize of the mātaitai per se in his determination, as he was required to.64 The Mātaitai applications briefing paper, above n 27, at [62].65 Affidavit of Stuart Nash, 8 June 2022, at [46]–[47].66 Submissions on behalf of Te Rūnanga o Ngāi Tahu and Te Rūnanga o Kaikōura, 15 August 2022,at [72].[119] I am satisfied that the Minister's determination on this head was reasonablyopen to him to make.Conclusion on second ground of review[120] I am satisfied the Minister had sufficient evidence before him to be satisfiedthat each of the criteria in reg 20(1) necessary for declaring a mātaitai reserve, and inparticular that outlined in reg 20(1)(c), was met here.[121] The requirement that the area proposed as a mātaitai be "an identifiedtraditional fishing ground and of a size appropriate to effective management by thetangata whenua" in general terms should not be seen solely, or even predominantly,through a Pākehā lens. Rather, the correct viewpoint arguably is that of thetangata whenua themselves, who, as the Waitangi Tribunal has found, "did notabandon their resources [but] were shut out from them by land settlement."67 Inthis case, the tangata whenua advised the Minister that the mātaitai as proposed is amahinga kai and of a size enabling management (or in other words the exercise ofkaitiaki obligations) over it. This followed and was part of a wider consultativeprocess (including through the Te Korowai process) in which the tangata whenua, as Iunderstand it, in fact limited the extent of that mahinga kai they requested to beprotected by way of compromise.[122] In these circumstances, I consider that in determining that the proposed areawas a "traditional fishing ground and of a size appropriate to effective managementby the tangata whenua", the Minister interpreted the regulation correctly, and made noerror in generally accepting the evidence of the tangata whenua in this regard.Third ground of review — failure to consult[123] The third ground of review is that the Minister breached natural justice byfailing to comply with the consultation requirements in the Regulations.[124] The applicant says that regs 18 and 19 (the consultation provisions) togetherrequire the Minister to give the individuals who will be affected by a proposed mātaitai67 The Ngai Tahu Report, above n 4 at 161.the opportunity to be heard. It suggests the Minister failed to comply with thatstatutory process before making the decisions. Because the Minister made thedecisions following a failure to comply with a consultation process prescribed bystatute, the applicant argues the decisions are the subject of a breach of natural justiceand were thus unlawful.68The consultation requirements under the Regulations[125] Regulations 18 and 19 set out a process the Minister must follow to allow forpublic consultation to occur prior to making a decision to establish a mātaitai. Takentogether, the consultation provisions prescribe the following process:(a) the Minister must, no later than 20 working days after receiving anapplication, publish a notice calling for written submissions two ormore times in a newspaper "circulating in the locality of the proposedmātaitai";69(b) as soon as practicable thereafter, and in any case not later than 20working days after the close of the submissions date, the Minister mustpublish a notice of a public meeting two or more times in a newspaper"circulating in the locality of the proposed mātaitai";70(c) the Minister and the tangata whenua applying for the mātaitai must thentogether consult with the local community at the meeting,71 after whichthe tangata whenua may amend their application;72 and(d) as soon as practicable, the Minister must invite submissions to be madeby those who have a fishing interest in the proposed area,73 and discuss68 Board of Trustees of Phillipstown School v Minister of Education [2013] NZHC 2641 at [56]–[64], [115] and [121].69 Regulation 18.70 Regulation 19(1).71 Regulation 19(2).72 Regulation 19(3).73 Regulation 19(4)–(5).with the tangata whenua whether any conditions are required to addressissues raised by those submissions.74[126] The applicant contends the actions taken to comply with step (a) above wereinsufficient, and the consultation requirements under steps (b) and (c) above simplywere not met. The applicant also says that in this case more was required beyond theexpress obligations set out in the Regulations to fulfil the duty to consult imposed onthe Minister. There is no issue taken with step (d) above.[127] In response, the respondents maintain the strict requirements of theRegulations were complied with and that in the context, additional consultationbeyond that strictly required by the Regulations was not necessary.Were the requirements met?[128] I have described the consultation process the Ministry undertook above at[29]–[32]. In brief summary for present purposes, the Ministry published publicnotices in the Marlborough Express newspaper on 14 October 2015, the Kaikōura Starnewspaper on 4 November 2015 and the Saturday Express newspaper on 7 November2015, calling for written submissions by 18 December 2015 and providing details ofa public meeting with the local community to be held on 12 November 2015. Thatpublic meeting was then held on that date at Takahanga Marae in Kaikōura. Publicnotice of the applications was also published on the Ministry's website and emailed toa number of commercial fishing industry representative groups and organisationswhich had previously advised the Ministry they wished to be informed of all mātaitaireserve applications in the area.[129] I now turn to consider whether there was a breach of natural justice in this caseon the basis of the alleged failure to comply with the consultation requirements.Express requirements[130] In terms of the express requirements under the consultation provisions, first,the applicant first says the timing constraints in reg 18(1) were not met as the two74 Regulation 19(6).public notices required were not both published within 20 working days from theapplications being first received.[131] The applications were received on 16 September 2015 and sent to FisheriesNew Zealand on 1 October 2015. The first public notice was published on 14 October2015, a second public notice published not long after, in a separate paper, on4 November 2015, and a third public notice appeared in the Saturday edition of thefirst paper again not long after that, on 7 November 2015. There is an argument, whichthe applicant relies on, that a strict reading of the regulation, taking the earlier of thedates on which the applications were received, required the two distinct notices bothto be published by 14 October 2015. Under this reading, both public notices wererequired to be published by 14 October 2015, with a gap of five working days betweenthe two publications.[132] In my view there is available, however, a more permissive reading of theregulation, which it seems from the timings of the public notices, the Ministry wasoperating on here. The regulation itself provides that "[n]o later than 20 working daysafter receipt of [an] application the Minister must cause notice of the application tobe published at least twice" (emphasis added). Under this, the regulation wouldrequire the Minister, "[n]o later than 20 working days" after receiving the application,to have brought about or arranged for the public notices to be published sometime inthe near future, with an interval of at least five working days between the two, but notnecessarily to ensure that both public notices had been published by this date. Therequirement that there be an interval of not less than five working days between thetwo notices, as I see it, makes such a reading more understandable.[133] In some ways, argument over which reading is strictly correct misses the point.As I explore in greater detail below at [149]–[153], reg 18 is designed to ensure thatconsultation with the local community occurs and the Minister makes their decisionsubsequently on the best information available. In this case, there cannot be said tobe any undue delay in the publication of the public notices. They were publishedpromptly, with a gap of more than five working days between the first and the lattertwo, and in separate papers. This, in my view, goes beyond the express requirementsin the regulation. Accordingly, I make no definitive finding here that the Ministerfailed to comply with the timing constraints imposed in the regulation. In thesecircumstances, I consider that the timing of the publication of the public notices as itoccurred did not frustrate the purpose or intent of that regulation or the widerlegislative framework.[134] In any case, on this point, reg 20(3) states that:(3) Non-compliance with any time period specified in regulation 18 or 19does not prevent—(a) the Minister from making a decision under this regulation [toestablish a mātaitai]; or(b) the declaration of a mātaitai reserve under regulation 22.[135] There is thus clear statutory language explicitly recognising that a failure tocomply with any time constraint is not by itself a reason to impugn a decision of theMinister to establish a mātaitai.[136] Next, the applicant argues that it was not sufficient for the Minister to rely hereon the public notices where there was either no newspaper circulating in the affectedarea or the circulation of any newspaper was otherwise very limited. The papers inwhich the public notices were published were the Marlborough Express, the KaikōuraStar, and the Saturday Express (which I understand is a Saturday edition of theMarlborough Express, with the same circulation). The applicant contends these werenot newspapers that circulate in the locality of the mātaitai reserves. The Minister'sdecision therefore to publish the notices in these newspapers was inadequate in respectof consultation.[137] "Locality" is not defined in the Fisheries Act. However, I accept the applicant'ssubmission that it might be understood here to mean an "area in the proximity of".The evidence as to the circulation of the papers is contested. It is accepted by allparties that the Marlborough Express is based in Blenheim, which is in a differentadministrative area and has a different council and regional council to the area wherethe mātaitai reserves are located. However, for the Minister it is said the distributionarea of the Marlborough Express extends to Goose Bay, which is approximately fivekilometres north of Oaro. I have also heard evidence that the Kaikōura Star, incontrast to the applicant's contention, does circulate beyond Kaikōura, including homedelivery to some addresses in Oaro. It seems it is also available at certain retailersoutside Kaikōura, including Cheviot.[138] In all the circumstances here, I consider the selection of these papers for publicnotification does not amount to a clear failure to comply with the requirements ofconsultation.[139] The purpose served by consultation is to ensure decision-making is informedby relevant information being made available and to engage the participation ofaffected persons.75 Admittedly here, the Minister might have chosen to publish thepublic notices also in a more major newspaper circulating in the general area such asthe Christchurch Press or the North Canterbury News. One possible consideration asto which paper would have been a better option for publishing the public notices mayor may not have resulted in the selection of a different paper. However, in light of thelocations of the mātaitai along the broader southern Kaikōura coast, it is generallyunderstandable why the Minister here opted to publish the notices in the localnewspapers selected.[140] This is particularly the case given that both the Marlborough Express and theKaikōura Star had been used to publicly notify other matters previously. These hadincluded the extension of the temporary closure at Wakatu Quay/Waiopuka in August2014 and the names of Tangata Tiaki/Kaitiaki for the Te Waha o te Marangai MātaitaiReserve, Maungaunu Mātaitai Reserve and Oaro Mātaitai Reserve established underthe Kaikōura (Te Tai o Marokura) Marine Management Act 2014 in September 2014.There is therefore some history of providing notice of restrictions based on customaryinterests and relating to mātaitai in these newspapers.[141] I am also strengthened in my conclusion here against the backdrop of thelonger-term Te Korowai process. That process involved publication of proposals forthree freshwater mātaitai in the area as well as opportunities for members of the publicto make submissions on those proposals. By all accounts it appears the consultationin respect of that process was accepted as adequate, and resulted in submissions being75 Phillip Joseph Constitutional and Administrative Law in New Zealand (5th ed, Thomson Reuters,Wellington, 2021) at [25.4.9].made by representatives of affected commercial fishers, whose concerns were thenaddressed and resolved prior to the present applications being submitted.[142] Accordingly, although the Minister might conceivably have chosen to publishthe public notices elsewhere, including perhaps in wider circulation major newspaperssuggested by the applicant, I am satisfied that what the Minister did here was sufficientand that the decision to publish the public notices in the newspapers selected could notbe seen as unreasonable.[143] Finally under this head, the applicant also adds the argument that the Ministerand tangata whenua who applied for the mātaitai reserves did not together consult withthe local community, or at all.[144] As I have concluded above, I have found the publishing of the public noticeswas adequate in these circumstances. Those public notices included details of a publicmeeting held on 12 November 2015 between the Ministry, the tangata whenuaapplying for the mātaitai, and members of the local community. I do not accept theapplicant's additional submission that the Minister provided insufficient time betweenthe notices published on 4 November 2015 and 7 November 2015 and the publicmeeting held on 12 November 2015. I am satisfied that in all the circumstances,holding the public meeting the following week was permissible.[145] That only one member of the public ultimately attended the public meeting isof course suboptimal. The Minister might have opted at this point to undertake furtherconsultation to ensure the decision would be made on the fullest information possible.However, in the wider circumstances of this case, a decision that further consultationwas not required is understandable. Indeed, those most likely to be directly affectedinitially by the mātaitai, and I refer particularly to commercial fishers in this respect,had already been involved in the development of the proposals for the mātaitai. Amajority of them, following discussions around the boundaries of the mātaitai, hadsubsequently provided their support to the applications. I am therefore satisfied thatthe Minister's decision not to undertake further consultation was not anunreasonable one.[146] While members of the applicant may or may not have become aware of thepresent applications themselves at the time they were made, the possibility of theseapplications was not unexpected. I say this noting that as I understand the position,these parties had a real opportunity to comment on the proposals earlier in theirdevelopment. The subsequent announcement of the mātaitai, therefore, would nothave come as a surprise. In my assessment of the consultation that occurred in thiscase, I place weight on the wider circumstances prevailing here, including thelegislative backdrop as well as the longer-term Te Korowai consultation process onthe proposed mātaitai and the fact that, as I was informed by counsel, certain membersof the applicant were themselves involved in that process.[147] In any case, however, I am satisfied the consultation that occurred in this casecomplied broadly with the requirements of the consultation provisions in theRegulations.Additional steps beyond express requirements[148] Notwithstanding my broad conclusion here that the Minister did comply withall the requirements under the consultation provisions, the applicant goes on to submitthat in this case more was required in order to fulfil the duty to consult imposed on theMinister.[149] As I have noted, s 186(2)(b) provides that regulations made under s 186(1) mayempower the Minister to declare a mātaitai reserve. However, it provides also thatsuch regulations shall require that before the Minister provides any notice to thateffect, the Minister and the tangata whenua "shall consult with the local community".[150] The consultation provisions in the Regulations, seen against the legislativeframework in which they exist, give practical shape to the requirements that legislativeframework imposes.[151] Notably, that framework also includes information principles contained in s 10of the Fisheries Act. In particular, s 10(a) and (d) provide that all persons exercisingor performing functions, duties or powers under the Fisheries Act shall take intoaccount that decisions should be based on the best information available, and that theabsence of, or any uncertainty in, any information should not be used as a reason forfailing to take any measure to achieve the purpose of the Act.[152] The requirements contained in the consultation provisions are thereforedesigned to ensure compliance with the duty that the Minister and tangata whenuaconsult with the local community before a mātaitai is declared, and also that theMinister makes their decision on the best information available and without theabsence of or uncertainty in any information being a reason for failing to take anymeasure to achieve the purpose of the Fisheries Act.[153] Against this legislative backdrop, I am satisfied that what is required under theduty of consultation in s 186(2)(b) is essentially what is prescribed in the consultationprovisions. In other words, those express requirements are both necessary andsufficient to comply with the duty of consultation in this case. The Minister will thusadequately meet the obligation to consult through adherence to the process asprescribed in those provisions. The Minister is no doubt entitled to undertakeadditional consultation beyond the express requirements. However, I consider that formore to be required of the Minister in terms of consultation beyond the measures inthe consultation provisions would require something additional. This might arise, ass 10 for example envisages, if there is a clearly significant gap in the informationbefore the Minister such that further consultation with submitters or the public toremedy this is required.[154] In this case, in my view, no more was required beyond those expressrequirements. I do not accept the applicant's submission to the contrary.[155] Be that as it may, however, in any case I am satisfied here the Minister wentbeyond these express requirements. In particular, the Ministry emailed commercialfishing industry representative groups and organisations that had previously asked tobe informed of mātaitai applications. The Ministry also published the information onits website. Again too I note that the proposals for the mātaitai were developed throughthe Te Korowai process.[156] As such, I am satisfied that, although I have found the Minister was notrequired to undertake any consultative measures beyond those expressly outlined inthe consultation provisions, in any case some additional steps beyond these weretaken. This, in my view, reflects the Minister's interest in ensuring that the mātaitaiwere established with proper regard for those likely to be affected.Conclusion on third ground of review[157] Consultation serves to ensure that decision-making is informed by relevantinformation and the participation of affected persons.76 The requirements under theconsultation provisions were designed to ensure that the Minister and the tangatawhenua who applied for the mātaitai consult with the local community before amātaitai is declared, and so that the Minister was able to make their decision on thebest information available and without the absence of or uncertainty in anyinformation being a reason for failing to take any measure to achieve the purpose ofthe Fisheries Act.[158] I am satisfied the Minister undertook a proper consultation process as he wasrequired to under the consultation provisions of the Regulations and s 186(2)(b) of theFisheries Act. The Minister complied with the express requirements in theconsultation provisions and, though not required, also took additional steps beyondthose requirements.[159] Arguably, the consultation process might at one level be said to have beenimproved in certain ways. However, this does not render the process itself flawed.This is particularly so considering the wider process, which involved significantconsultation and participation with members of the local community in developing theproposals for the mātaitai, and also the express provision in reg 20(3) that non-compliance with time constraints does not by itself make a decision of the Ministerunlawful. I am satisfied that the Minister's approach to consultation here could not besaid to be unreasonable. Rather, as I see the position, it achieved the wider purpose ofthe statutory framework in this case.76 At [25.4.9].Relief[160] The applicant in its review application here had sought declarations that thedecisions were invalid and orders quashing or setting aside the notices. Had thatreview succeeded, it says the mātaitai applications would then need to be reconsideredby the Minister, following what the applicant endeavoured to argue was the correctconsultation processes.[161] The Ngāi Tahu parties for their part responded that in the event the Court hadfound any of the grounds of review to be made out, the Court should not exercise itsdiscretion to order relief. The Ngāi Tahu parties raised two arguments in support oftheir position on this aspect – first, on account of delay in bringing the proceedings,and secondly, on account of futility even if relief were granted. The Ngāi Tahu partiessay it is now more than four years since the decisions challenged in these proceedingswere made, and the errors asserted by the applicant, even if valid, would not havechanged the decisions.[162] As will be apparent from my conclusions above, I have not found any of thegrounds of review in the challenge to the Minister's decisions to be made out. It istherefore unnecessary for me to consider relief. I merely add at this point that, had Ifound there to be any reviewable error here, I might have exercised my discretion notto decline relief in any case, given that any failure on the part of the Minister wouldhave been very minor and it would be nugatory in all the circumstances to orderreconsideration of the decisions, particularly given the extensive, comprehensive andlong-term negotiations and arrangements reached here against a much broaderlegislative background.Conclusion[163] The applicant raised three grounds of review against the Minister's decisions.My conclusions in respect of each are summarised as follows.First ground of review — uncertainty[164] The first ground of review is that the notices are void for uncertainty in threerespects.[165] As to the first respect, I am satisfied the term "South Island fisheries waters"is readily ascertainable and sufficiently clear to those likely to be affected by themātaitai to understand what waters the restriction against commercial fishing appliesto.[166] As to the second respect, I am satisfied that though the notices include termsthat are not defined, such as "catchment" and "tributary", the meaning of these termscan readily be ascertained. They are well understood and work effectively as a matterof common sense.[167] As to the third respect, I consider the descriptions used in the notices aresufficiently clear to allow the external boundaries of the mātaitai to be ascertained.[168] Overall in relation to this ground of review I am satisfied the notices aresufficiently clear and fall within the scope of their empowering legislation. They arenot void for uncertainty.Second ground of review — lack of evidential foundation[169] The second ground of review is that the evidence before the Minister was notreasonably capable of satisfying him that each of the grounds necessary for declaringa mātaitai reserve was met, in particular reg 20(1)(c), that the areas of the mātaitaiwere identified traditional fishing grounds and of a size appropriate to effectivemanagement by tangata whenua.[170] When considering the meaning of the Regulations, in light of the widerstatutory context and the purposes of the empowering legislation, the criteria mustgenerally be interpreted in accordance with te Tiriti and through the lens of tikanga.The material that was before the Minister was reasonably capable of satisfying himthat the areas were mahinga kai, which the Ngāi Tahu parties see as synonymous withthe terms of reg 20(1)(c), as identified traditional fishing grounds of a size appropriateto effective management by tangata whenua. The Minister made no error in thisregard.Third ground of review — failure to consult[171] In relation to the third ground of review, the Minister's alleged failure toadequately consult with members of the local community, I am satisfied that theMinister undertook a proper consultation process as he was required to under theconsultation provisions of the Regulations and s 186(2)(b) of the Fisheries Act. TheMinister complied with the express requirements in the consultation provisions and,although not required in order to comply with the duty to consult, also took additionalsteps beyond those requirements, including notifying certain affected representativegroups and organisations and publishing the information on its website.Relief[172] I have found none of the grounds of review to be made out. It is thereforeunnecessary for me to undertake any definitive consideration of relief.[173] As an aside I note that, given it appears the applicant here representslandowners and not parties with commercial fishing interests, the applicant and itsmembers would not be affected by any restrictions or prohibitions applying to themātaitai relating to non-commercial fishing under and until bylaws are created. Nosuch bylaws have been created to date and the creation process in any event requiresprior notification and public submissions before approval. Genuine concerns theapplicant and its members may hold about the potential impacts of mātaitai may bebetter raised and resolved if possible (even by way of judicial review) through thatbylaw process (if indeed it occurs).Result[174] As will be apparent, I am satisfied none of the grounds of review alleged bythe applicant have been made out.[175] The application for judicial review is dismissed.Costs[176] I heard no argument on costs. I see no reason why the respondents, as thesuccessful parties, should not be entitled to an order for costs and disbursements in theusual manner. However, I urge the parties to liaise with a view to determining issuesover any costs that may be sought. Failing agreement on costs, I will receivesubmissions (sequentially) from the parties (to be no more than five pages in length)and I will determine the issue of costs on the papers.Gendall JSolicitors:Parry Field Lawyers Limited T/A Parry Field Lawyers for the ApplicantCrown Law Office for the First RespondentR J B Fowler King's Counsel and Oceanlaw New Zealand for the Second Respondents