NEW ZEALAND ROCK LOBSTER INDUSTRY COUNCIL LTD v MINISTER OF FISHERIES [2020] NZHC 1475

NEW ZEALAND ROCK LOBSTER INDUSTRY COUNCIL LTD v MINISTER OF FISHERIES [2020] NZHC1475 [26 June 2020]IN THE HIGH COURT OF NEW ZEALANDWELLINGTON REGISTRYI TE KŌTI MATUA O AOTEAROATE WHANGANUI-A-TARA ROHECIV-2020-485-320[2020] NZHC 1475BETWEEN NEW ZEALAND ROCK LOBSTERINDUSTRY COUNCIL LIMITEDFirst ApplicantPETER THOMAS HERBERTSecond ApplicantAND MINISTER OF FISHERIESFirst RespondentCHIEF EXECUTIVE OF FISHERIESNEW ZEALANDSecond RespondentHearing: 26 June 2020Counsel: B A Scott and J W Henderson for applicantsJ M Prebble for respondentsJudgment: 26 June 2020JUDGMENT OF DOBSON J[1] These proceedings were filed yesterday afternoon, 25 June 2020. Thestatement of claim seeks judicial review of the first respondent's (the Minister's)decision to establish the Te Kopa o Rongokānapa Mātatai Reserve (the MātataiReserve), an order setting aside Fisheries notices consequent on the establishment ofthe Mātatai Reserve, and a declaration that the Minister should reconsider his decisionon the establishment of the Mātatai Reserve.[2] The applicants have moved for urgent interim orders, without notice to therespondents. The documents were served on Crown Law on a Pickwick basis, and Iam grateful to Mr Prebble for appearing at short notice to provide an indication of thegrounds that would be relied on to oppose the interim orders sought.[3] Urgency is claimed because a Gazette Notice bringing the Mātatai Reserve intoforce is to come into effect on Monday, 29 June 2020, with consequences includingthat thereafter all commercial fishing within the reserve area will be prohibited.[4] The first applicant is an industry representative group, seeking reliefspecifically in relation to the position of two commercial rock lobster fishers whoseactivities include taking rock lobster from within the boundaries of the proposedMātatai Reserve. The second applicant is a commercial kina fisher whose activitiesinvolve taking kina from within the area of the Mātatai Reserve.[5] Thus far, the applicants claim that they have been given no explanation forrejection of their opposition to the extent of the Mātatai Reserve, which they havenotified to the respondents would prevent them from taking their commercial quotaand annual catch entitlements (ACE).[6] If the applicants' claims are subsequently made out, then the enforcement ofthe Gazette Notice will arguably cause harm to their interests in respects that wouldnot then be able to be addressed by an award of damages. In short, on the state of theapplicants' pleading and affidavits thus far, some interim orders appear necessary topreserve their interest in the status quo. All three of the fishers adversely affected havefished in the area for very long periods of time. They wish to challenge the Ministerof Fisheries' decision that creation of the Mātatai Reserve will not prevent them takingtheir ACE from areas outside the reserve. Thus far, there has been no disclosure of thereasons for the Minister's decision.[7] The memorandum of counsel in support of the interlocutory applicationdescribes the scope of the interim orders sought as intended only to prevent theMinistry for Primary Industries from enforcing the prohibition on commercial harvestwhile the proceedings are determined. The applicants contend that the orders wouldnot otherwise prevent the Mātatai Reserve applicants, Te Whānau a KauaetangohiaHapū (the Hapū), from operationalising or managing the reserve while the substantiveproceedings are determined. It seems likely that the Hapū will want to advance aposition in opposition to the applicants, and an issue that should be addressed early inthe proceedings is the appropriate form in which they can participate.[8] The applicants are concerned that if they were required to fill their quotaswithout fishing in parts of the Mātatai Reserve area, then they would be unable to taketheir quotas without breaching sustainable fishing levels which are currently beingrespected. From their perspective, the outcome would be that they either do not taketheir quotas, or they risk breaching the pattern of sustainable fishing in areas outsidethe Mātatai Reserve.[9] The orders sought are intended to preserve the applicants' present positionpending determination of their challenge to the adequacy of grounds for the Minister'sdecision to create the extent of reserve that has been gazetted. If their current patternof fishing is not able to be maintained, then either they suffer financial loss from areduced take or they compromise the sustainable level of fishing outside the area ofthe proposed Mātatai Reserve.[10] For the respondents and the Hapū, interim orders pending a promptdetermination will prolong, for a short period, the intrusion of a controlled level ofcommercial fishing in the Mātatai Reserve, but not otherwise impede theestablishment of management of the Mātatai Reserve in the interests of those whoapplied for it.[11] Mr Prebble raised a question as to the efficacy of interim orders of the typesought. He submitted that once formal steps had been completed for the creation ofthe Mātatai Reserve, and notice had been given of its status coming into effect, thenregulations prohibit any commercial fishing activities within its boundaries. Thatposition pertains as a matter of law, and he respectfully questioned the scope for theCourt to make interim orders, the effect of which was intended to "undo" the operationof the law.[12] Mr Scott accepted that conceptually the Court could not make orders thatwould render commercial fishing lawful within the Mātatai Reserve. Rather, hesubmitted that this was precisely the situation provided for in s 15(3) of the JudicialReview Procedure Act 2016, which provides for orders that declare the Crown oughtnot to institute or continue any proceedings, civil or criminal, in connection with anymatter to which the application relates. Mr Scott submitted that that provision reflectsthe pre-existing practice that had arisen and been provided for in a number of cases.1Any limits on the utility of such orders is not a compelling reason weighing against agrant of interim relief.[13] Accordingly, I see the balance of convenience favouring interim orders onlimited terms.[14] I am satisfied that orders intended to do no more than hold the positiontemporarily are appropriate. The applicants have presented a draft of the terms oforders they seek, but amendments to that draft are appropriate. The interim orders areto be made under s 15(3) of the Judicial Review Procedure Act in the following terms:1. A declaration that pending further orders of the Court, the first and secondrespondents ought not to:1.1 take any further action that is or would be consequential uponestablishing the Te Kopa o Rongokānapa Mātatai Reserve under theterms of the:(i) Fisheries (Declaration of Te Kopa o Rongokānapa MātataiReserve) Notice 2020: Notice No MPI 1132; and(ii) Fisheries (Notification of Te Kopa o Rongokānapa MātataiReserve and Tāngata Kaitiaki/Tiaki) Notice 2020: NoticeNo MPI 1133;made under regulations 23 and 25 of the Fisheries (KaimoanaCustomary Fishing) Regulations 1998 (the Regulations); and1 Leigh Fishermans Association Inc v The Minister of Fisheries HC Wellington CP266/95,15 December 1995 at 2, 3 and 10; The New Zealand Federation of Commercial Fishermen Inc vThe Minister of Fisheries HC Wellington CIV-2008-485-2016, 26 September 2008 at [5], [99].1.2 institute or continue any proceedings, civil or criminal, in connectionwith any matter to which this application relates.2. This interim declaration is granted on conditions that:2.1 the applicants are to confine the locations and extent of fishing withinthe Mātatai Reserve to the locations and quantities of take as reflectedin their pattern of fishing in recent years;2.2 the applicants are to retain accurate records of any fishing within theMātatai Reserve to enable their compliance with condition 2.1 to beassessed;2.3 the applicants are to serve the proceedings on the Hapū within sevendays, subject to leave to apply for further directions in the event ofunusual difficulties in doing so;2.4 leave is reserved to the Hapū to seek to be joined to the proceedings aseither a respondent or an intervener;2.5 the parties are, either within 14 days or such shorter period reasonablyrequested on behalf of the respondents, to file a memorandumconcerning timetables and seeking any other direction necessary tobring the proceedings on for a hearing;2.6 leave is reserved to the respondents and the Hapū to apply for variationor discharge of these orders on three days' notice, and more generallyleave is reserved to any party to apply for further orders, also on threedays' notice;2.7 costs on the application are reserved.[15] I indicated to counsel during the hearing the potential availability of a fixturefor the substantive judicial review on 29 July 2020. Mr Scott considered that theevidence and argument could not adequately be prepared for a fixture at that time. Healso raised concerns about his own availability. Mr Prebble had a preference for thesubstantive hearing to be expedited and indicated that the respondents would facilitateprompt discovery to enable the matter to be advanced.[16] Until the position of the Hapū is known, it is premature to make furtherdirections. If the applicants seek a longer period for preparation, they will appreciatethat increases the prospects that the respondents will move for a fully argued challengeto the interim orders I have made on a Pickwick basis today.[17] The urgency required to deal with the without notice application, and thepressure of other commitments, mean that my decision to grant the application canonly be on a provisional view of the merits. It goes without saying that the viewsexpressed on the materials presented can only be provisional, and the Court will accordwhatever priority it can to provide a hearing either for a revisiting of the justificationfor interim orders, or preferably an expedited substantive hearing of the judicial reviewas soon as is practicable.Dobson JSolicitors:Chapman Tripp, Wellington for applicantsCrown Law, Wellington for respondents