PACIFIC TRAWLING LIMITED AND INDEPENDENT FISHERIES LIMITED V THE MINISTER OF FISHERIES HC NAP CIV 2007-441-1016

PACIFIC TRAWLING LIMITED AND INDEPENDENT FISHERIES LIMITED V THE MINISTER OF FISHERIES HC NAP CIV 2007-441-1016 29 August 2008IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY CIV 2007-441-1016UNDER the Judicature Amendment Act 1972 IN THE MATTER OF decisions made under Section 75 of the Fisheries Act 1996 BETWEEN PACIFIC TRAWLING LIMITED AND INDEPENDENT FISHERIES LIMITED Applicants AND THE MINISTER OF FISHERIES Respondent Hearing: 1 & 2 July 2008 Appearances: M E J Macfarlane for the applicants P A McCarthy and D A McDonald for the respondent Judgment: 29 August 2008RESERVED JUDGMENT OF PRIESTLEY JThis judgment was delivered by me on Friday 29 August 2008 at 11.00 am pursuant to Rule 540(4) of the High Court Rules. Registrar/Deputy Registrar Date: Counsel/Solicitors: M E J Macfarlane, Sainsbury Logan & Williams, P O Box 41 Napier 4140 Email: manager@slw.co.nz P A McCarthy and D A McDonald, Crown Law, P O Box 2848 Wellington 6140. Email: peter.mccarthy@crownlaw.govt.nzTABLE OF CONTENTSParagraph Introduction 1 The Statutory Scheme 6 Deemed Value Rates 19 The Notice 25 Relevant Evidence 36 Discussion 42Challenged Fish Stock Deemed Values 43Decision on Validity of Notice to Challenge Stock 60Challenge to BAR7 88Spiny Dogfish 102 Result 123 Costs 125Introduction[1] The applicants are fishing companies based in Napier and Christchurch respectively. By means of judicial review they seek declarations of invalidity relating to various decisions made by the Minister of Fisheries (the Minister) under the Fisheries Act 1996. An order is also sought quashing or setting aside the challenged decisions. [2] The central thrust of the applicants' attack is the on Fisheries (Interim and Annual Deemed Values) Amendment Notice (No. 2) 2007 (the Notice), which the Minister issued on 23 September 2007. [3] Regardless of the outcome of that challenge, the applicants also challenge the validity of the Notice as it extends to two fish species, spiny dogfish and barracouta. [4] The effect of the notice was to increase substantially the Deemed Value (DV) sums payable by commercial fisheries in respect of their off-shore catches. [5] Mr Macfarlane informed me that a number of fishing interests support the judicial review application and have an interest in its outcome.The Statutory Scheme[6] A brief overview of the Fisheries Act 1996 is necessary since DVs are an integral part of various concepts authorising the Crown to control and manage fisheries. [7] Section 8(1) bluntly states that the purpose of the Act is "to provide for the utilisation of fisheries resources while ensuring sustainability". As with so many statutes (the Resource Management Act 1991 is another example) there are clear tensions between utilisation and sustainability. Any utilisation of a resource will to some extent imperil sustainability because the resource is being diminished. In exactly the same way development of land can imperil the environment.[8] Section 8(2) defines these two poles:(2) In this Act—ensuring sustainability means— (a) maintaining the potential of fisheries resources to meet the reasonably foreseeable needs of future generations; and (b) avoiding, remedying, or mitigating any adverse effects of fishing on the aquatic environment:utilisation means conserving, using, enhancing, and developing fisheries resources to enable people to provide for their social, economic, and cultural wellbeing.[9] The Minister and others performing relevant statutory powers, duties, and functions are obliged to take into consideration environmental principles:9 Environmental principlesAll persons exercising or performing functions, duties, or powers under this Act, in relation to the utilisation of fisheries resources or ensuring sustainability, shall take into account the following environmental principles: (a) associated or dependent species should be maintained above a level that ensures their long-term viability: (b) biological diversity of the aquatic environment should be maintained: (c) habitat of particular significance for fisheries management should be protected.[10] The Act interestingly prescribes various "information principles" which a decision maker is obliged to take into account. Information which is absent or uncertain, however, need not be a pretext for inaction.10 Information principlesAll persons exercising or performing functions, duties, or powers under this Act, in relation to the utilisation of fisheries resources or ensuring sustainability, shall take into account the following information principles: (a) decisions should be based on the best available information: (b) decision makers should consider any uncertainty in the information available in any case: (c) decision makers should be cautious when information is uncertain, unreliable, or inadequate:(d) the absence of, or any uncertainty in, any information should not be used as a reason for postponing or failing to take any measure to achieve the purpose of this Act.[11] This provision, in my judgment, highlights some of the difficulties in the fisheries management area. Section 10 sensibly recognises that human knowledge of the oceans and fish species is imperfect and constantly changing. Available information must be considered. But there is no statutory prohibition on making sustainability and management decisions in an information vacuum. [12] Part 3 of the Act, headed "Sustainability measures" empowers the Minister to set or vary sustainability measures relating to fish stock or areas. Before taking such steps ss 11(2) and 11A set out matters the Minister must take into account when considering sustainability measures. Section 11(3), broadly cast, includes amongst sustainability measures such matters as catch limits and allowable catches; limits on size, sex, or biological state of any fish; the areas from which fish might be taken; fishing methods; and fishing seasons. [13] Clearly sustainability measures include such issues as the establishment of quota management areas (s 17B), total allowable catch (TAC) (s 13), total allowable commercial catches (TACC) (ss 20 and 21), and, as we shall see, DV rates (s 75). [14] The quota management system and the interlocking of these relevant provisions was succinctly described by O'Regan J delivering the Court of Appeal's recent judgment in Sanford Limited & Ors v New Zealand Recreational Fishing Council Inc & Ors [2008] NZCA 160.[15] The quota management system has been described in numerous decisions of the High Court and this Court, and we do not propose to set out the statutory framework in detail. For species subject to the quota management system, the Fisheries Act envisages that the Minister will set the TAC for that species in each QMA, and, having done so, will then set the TACC for that QMA. When setting the TACC, the Minister is required to first allow for Maori customary non-commercial fishing interests and recreational interests, and other mortality to the species of the stock caused by fishing. Essentially the difference between the total allowances made for those factors and the TAC is the TACC. [16] Quota held by commercial fishers is a form of property right entitling the fisher to catch the relevant species in a particular fishing year in a particular QMA. Quota are not expressed in absolute amounts, but asproportions of the TACC for the relevant QMA. For this reason, any reduction in the TACC diminishes commensurately each quota holder's property right. The interests of commercial fishers are to keep the TACC at the highest possible level and, as the TACC is a proportion of the TAC, to also keep the TAC at the highest level, though fishers taking a long term view presumably accept that the TAC and TACC should not be so high as to threaten the sustainability of the fishery.[15] Of some relevance to managing fisheries is the s 2 definition of "maximum sustainable yield", linked somewhat uneasily with and subject to the same difficulties I have highlighted as ss 8(1) and 10.Maximum sustainable yield, in relation to any stock, means the greatest yield that can be achieved over time while maintaining the stock's productive capacity, having regard to the population dynamics of the stock and any environmental factors that influence the stock.[16] Provisions governing the quota management system are contained in Part 4 of the Act. Each year the Ministry's Chief Executive must allocate an annual catch entitlement to each quota owner (s 67). TAC and TACC, for obvious reasons, underpin and determine the quota management system and a quota owner's ACE. [17] Leaving aside the mechanism for calculating TACC, control of TACs is managed by annual catch entitlements (ACE) available to commercial fishers measured in the weight of various fish species. This entitlement is held by a fisher as a result of underlying quota rights which fishers purchase on the market. [18] There is a statutory obligation for fishers to return their monthly catch figures. If, for a particular caught species, a fisher does not have an ACE, the DV, at the interim rate fixed by the Minister, is payable to the Crown. It is open to a fisher to acquire more relevant quota during the course of the year. At the end of each fishing year there is a balancing in respect of which, species by species, a fisher is charged the final annual DV rate if ACE is exceeded.Deemed Value Rates[19] The authority for and the purpose of DVs which the applicants challenge is found in s 75:75 Minister to set deemed value rates(1) For each quota management stock, the Minister must, by notice in the Gazette, set an interim deemed value rate and an annual deemed value rate for that stock, and those rates continue to apply in each fishing year for that stock unless varied under this section. (2) In setting an interim deemed value rate or an annual deemed value rate, the Minister— (a) Must take into account the need to provide an incentive for every commercial fisher to acquire or maintain sufficient annual catch entitlement in respect of each fishing year that is not less than the total catch of that stock taken by that commercial fisher; and (b) May have regard to— (i) The desirability of commercial fishers landing catch for which they do not have annual catch entitlement; and (ii) The market value of the annual catch entitlement for the stock; and (iii) The market value of the stock; and (iv) The economic benefits obtained by the most efficient commercial fisher, licensed fish receiver, retailer, or any other person from the taking, processing, or sale of the fish, aquatic life, or seaweed, or of any other fish, aquatic life, or seaweed that is commonly taken in association with the fish, aquatic life, or seaweed; and (v) The extent to which catch of that stock has exceeded or is likely to exceed the total allowable commercial catch for the stock in any year; and (vi) Any other matters that the Minister considers relevant. (3) The Minister must set annual deemed value rates for a stock that are greater than interim deemed value rates set for that stock. (4) The Minister may set different annual deemed value rates in respect of the same stock which apply to different levels of catch in excess of annual catch entitlement. (5) The Minister may set an interim deemed value rate and an annual deemed value rate in respect of fish, aquatic life, or seaweed landed and received by a licensed fish receiver in the Chatham Islands that is different from the deemed value rate set in respect of fish, aquatic life, or seaweed of the same stock landed and received by a licensed fish receiver elsewhere. (6) The Minister must not—(a) Have regard to the personal circumstances of any individual or class of person liable to pay the deemed value of any fish, aquatic life, or seaweed; or (b) Set separate deemed value rates in individual cases—when setting an interim deemed value rate or an annual deemed value rate. (7) Any interim or annual deemed value rate set under this section may be varied by the Minister in the same manner, and any rate set or varied under this section takes effect on the first day of the next fishing year for the stock concerned[20] Counsel broadly described the Minister's power to set DVs as a tool to address the phenomenon of over-fishing. During the course of a year a commercial fisher may land volumes of species in excess of the permitted catch entitlement. This may be for a variety of reasons. The fisher may have acquired insufficient quota to cover its projected catch or needs. The over-fishing may be deliberate. Or the over-fishing may in part be inadvertent because the species has been progressively caught up in trawl nets as by-catch in situations where the fisher's actual target was another species. [21] The purpose of DV was examined in a broad sense by Doogue J in Pacific Trawling Ltd & Ors v The Chief Executive of Agriculture and Fisheries (HC NAP CP17/99, 28 July 2000). The Judge was dealing with DVs imposed under similar but predecessor sections to the current legislation. The central thrust of the challenge before the Court was that DVs were an impermissible penalty. Since then, as I understand it, different legislation now requires all catch taken to be landed and weighed unless the species appears in a Schedule of the Act permitting its dumping or return to the sea. Doogue J stated:[60] The deemed value regime under ss 28ZD and 28ZE only arises if the fisherman has chosen to retain fish for which no quota is held. It is a regulatory regime which only comes into play where the fisherman has not returned by-catch to the sea or has chosen not to surrender ownership of the fish to the Crown: ss 28ZD(1) and 105A(1)(c). It is submitted for the plaintiffs that the surrender of ownership to the Crown is itself a form of forfeiture to the Crown of fish which is otherwise the fisherman's. This is not the place for an analysis of who owns the fish as the only concern is whether the predominant purpose of the deemed value provisions is punishment. It is clear that the intention of the quota management system is that the fisherman should only have the benefit of fish for which quota is held. If the fisherman does not have quota, the fisherman cannot expect to have the benefit of the fish. A fisherman who chooses to keep the fish and be subjected to the deemed value regime has deliberately made an election tocome within that regime. The taking of the by-catch does not itself result in a submission to the deemed value regime. It is the decision of the fisherman to keep the by-catch which gives rise to that result. The resultant liability for deemed value payments is not in essence a penalty but a payment other than for quota for the by-catch kept.[22] Some brief analysis of s 75, which is the Minister's authority to set the DVs under challenge, is helpful. Section 75(2)(a) stipulates as a mandatory consideration the need to provide incentives for commercial fishers to acquire or maintain a sufficient annual catch entitlement which should clearly not be less than the fish stock actually taken. This in my judgment is a clear Parliamentary message that a primary purpose of DVs is to ensure that, as part of the TACC/quota management stock regime, a fisher should, as near as possible, be obliged (the DV being a financial "incentive") to ensure ACEs match, species by species and area by area, what the fisher is taking. [23] Section 75(2)(b) sets out six discretionary matters the Minister must consider. These matters underpin, but are qualitatively different from, the s 75(2)(a) "incentive". They include the desirability of fishers landing catch to which they have no entitlement (which points towards ensuring the DVs are not so high as to encourage illegal and surreptitious dumping); the market values of entitlements and stock; economic benefits; and, clearly relevant to management matters, the extent to which the annual stock catch exceeds or is likely to exceed the relevant TACC. [24] The commercial importance of DVs and the incentive to attack Deemed Value Notices is recognised by s 75B(1) which constrains judicial review proceedings to a three month period after Gazette notification. This proceeding is within time.The Notice[25] A number of documents have been produced in evidence which preceded or accompanied the Notice. The DVs, both interim and annual, are assessed at a dollar rate per kilogram and vary for each particular fish species in each of the prescribed fishing areas. It is unnecessary for the purposes of this decision to describe this further. BNS3 and SPD1, for instance, indicate rates for blue nose and spiny dogfishrespectively in the areas promulgated numerically off the New Zealand coast across the country's economic zone. [26] Before issuing the Notice the Minister received from his departmental officials an initial position paper, submissions, a departmental summary of submissions, and a "Final Advice and Summary of Recommendations" dated 5 September 2007. [27] The Final Advice to the Minister stated:6 All stocks on the review list were assessed at the deemed value review group meeting held Tuesday 15 May 2007. If the review group considered a deemed value adjustment was appropriate a range of information sources was used to propose the new deemed value rates. The individual assessments for each stock can be found in this paper. 7 In a number of cases stocks associated with the stock under review were also considered for a deemed value adjustment. These associated stocks include neighbouring stocks of the same species, e.g., BAR4 is included in the review of BAR5, or the bycatch stocks of a target stock under review, e.g., GUR3 is included because it is a bycatch of RCO3. These associate stocks are included in Table 1 and Table 2 in brackets. 8 A wide range of views on the proposed deemed value changes was received from stakeholders. MFish has taken these views into consideration and when appropriate has incorporated them into the recommended deemed value rates for your consideration.[28] Some twenty-one submissions were received including submissions from both applicants. Their thrust is briefly but accurately summarised in the Final Advice. [29] The process which led to the final advice to the Minister was also set out:54 The deemed value standard sets out a process for reviewing and adjusting deemed value rates. This process was used to identify stocks for review and to propose the deemed value rates that are set out in this advice paper. 55 All quota management system (QMS) stocks were assessed against the following deemed value criteria: a) Catch is in excess of available ACEb) Catch is in excess of an individual's ACE holdings and deemed values have been invoiced but ACE has remained unused c) The port price of a stock has changed d) The Seafood Industry Council (SeaFIC) made a direct request on behalf of quota owners e) A stock's TACC or the TACC of key bycatch stocks was recently changed f) The stock recently entered the QMS and the deemed value rate was set using limited information. 56 A significant proportion of QMS stocks met one or more criteria but due to resource constraints and timing issues it was not possible to review all eligible stocks in this review round. Stocks were prioritised based on industry requests and the relevant fishery manager's perception of the risk of leaving the deemed value rates unchanged for another season. All fishstocks detailed in Table 1 above were prioritised for inclusion in this review. 57 Following an assessment of the stock's performance against the criteria described above information sheets were prepared for each stock. These information sheets include: a) Quantitative information detailing the stock's performance against he criteria described above. b) Qualitative and anecdotal information on the fishery including an assessment of the types of behaviour that the deemed value is required to manage. 58 This information was analysed to determine why deemed value rates for some stocks may not be effective. This formed the basis of the following analysis: a) Likely reasons for the TACC overcatch/ACE breaches. b) An assessment of the bycatch fisheries associated with the stocks under review. c) If there has been significant changes in the structure of quota/ACE holdings for the stocks. d) Likely risk that the deemed value requirements set out in the Act may not be met. e) Impact of changes in market price and/or structure for the fish product/species under review.[30] Attached to the Final Advice as Appendix 1 is a two page document, simple in its form, titled "Deemed Value Standard (2007)". This document is referred to in the first paragraph of the Final Advice under the heading "Purpose".1 The purpose of this paper is to set out the Ministry of Fisheries (Mfish) recommendations for deemed value rates for selected fish stocks for the 2007-08 fishing season. The review has been undertaken using the new deemed value standard. A summary of this standard can be found in Appendix 1.[31] The expressed aim of the Appendix 1 Deemed Value Standard (2007) is:To set a deemed value rate above the ACE price where the TACC is constraining catch, to encourage fishers to balance catch through the purchase of ACE rather than the payment of deemed values. For high value stocks the deemed value rate will be considerably above the ACE price.[32] The Deemed Value Standard under the heading "When is a DV reviewed?" states the following:(2) If one of the following indicators listed below is met:• Catch is in excess of available ACE• Deemed value payments invoiced in the previous fishing year but ACE remained unused• Changes to the port price of the stock• Direct request from SeaFIC on behalf of quota owners• Recent changes to a stock's TACC or the TACC of key bycatch stocks• Stock has recently entered the QMS and the deemed value rate was set using limited information. And Following a review of the fishery to analyse and assess:• Likely reasons for the TACC overcatch/ACE breaches• Performance of bycatch fisheries associated with the stock under review• Changes in the structure of quota/ACE holdings• Changes in the market price/market structure for the fish product/species under review• Risk that the deemed value requirements set out in s.75 of the Fisheries Act 1996 may not be met.[33] In the same time frame that the Notice was promulgated the Minister sent out a lengthy 34 page letter to all stake holders outlining decisions he had made on sustainability measures and management controls for the 2007-2008 fishing year. This letter covered a multitude of topics including fish stock, management numbers, TACs and TACCs, as well as DV rates. [34] In a section of the letter relating to DVs the Minister set out a very clear statement of policy and what lay behind the increase in DV rates which the Notice announced for some stock. It was a change which the Minister considered had been a long time coming.Correct deemed values are absolutely critical to the integrity of the Quota Management System. They are as important to the sustainability of a fishery – and its economic value – as the TAC and TACC. I have therefore decided to make a number of changes across a whole range of fish stocks to better ensure that catch is balanced with a fisher's ACE. I will not tolerate excessive catch in a fishery above the available ACE in that fishery. This general 'tightening' of the system is critical to ensure the integrity of the Quota Management System. I know this will cause problems for some parts of the industry. But this was a change that was a long time coming. My message is clear: ACE should be used to balance catch, or fishers should change their fishing practices to reduce or eliminate the harvest of stocks for which you cannot balance with ACE. I am advised that there may be a tendency for some irresponsible fishers to try and avoid deemed values by discarding unwanted fish. This is unacceptable. Under the Fisheries Act, this is a criminal act. When caught, such fishers will be prosecuted and face large fines and potential forfeiture of quota and vessels. I expect that my deemed values decisions will influence where enforcement effort is applied. I have asked MFish to step up efforts to detect any possible illegal discarding. The new Project Protector vessels, along with helicopters and fixed-wing aircraft, will be deployed to detect possible offending. Deemed values should be charged a lot more rarely than they are now, and they should be for small and unexpected overruns above ACE holdings. Fishers should not deliberately target species over their ACE holdings, or have insufficient ACE to cover bycatch when harvesting a target species: inall cases, my obligation under section 75(2)(a) of the Act is to ensure that the incentive is to cover that catch with ACE. I recognise that some believe the TACCs for some stocks are too low, and where this is the case, I agree that these should be reviewed. However, I am not willing to allow TACCs to be substantially exceeded by setting artificially low deemed values. I will not knowingly set deemed values that will allow or encourage catch well in excess of ACE. To do so would be a breach of my obligations under section 75(2)(a) of the Act. I will not make some TACCs 'real' and others 'on paper'. However, I do agree that some TACCs need more urgent review, and these are noted in the individual stock sections.[35] The policy and rationale of DVs contained in the Minister's letter are broadly consistent with the mandatory consideration enacted by s 75(2)(a).Relevant Evidence[36] I do not need to canvass the non-documentary evidence contained in deponents' affidavits to any great extent. In large measure the evidence concerns matters of perception or, in some instances, submission. [37] Mr C J Robinson for the applicants refers to legitimate problems which the industry faces. Despite design improvements, catch plans, and the introduction of fishing patterns designed to avoid particular species, there is always by-catch. Commercial fishers targeting any of the main commercial species will inevitably catch other associated species, many of which have limited value and in respect of which Mr Robinson considers there has been little research, with TACCs being set largely by guess work. [38] There is something of a "catch 22" situation here because, if fishers actively avoid certain species in some areas to minimise catch over-runs, they simply cannot fish for some species for which they have ACE at certain times. [39] The matter of principle the applicants see as wrong is to "penalise" fishers for by-catch in excess of ACE when there has been no review of by-catch stock by TACC review or otherwise.[40] Mr Robinson referred to the powerless state of the in-shore fishing industry and the erosion of profits which would flow from increased DVs. If there were to be no relief from DVs some fishers might leave the industry or revert to dumping. [41] For the Minister, the Ministry's chief economist, Dr R E Townsend, outlined the background to the Deemed Value Standard (2007). Its goal is to set a DV rate above the cost of acquiring ACE, this being seen as a correct incentive to achieve the goal of restraining catches to TACC. Dr Townsend admitted to various uncertainties. When the Ministry identifies a stock for which the DV is not performing the function of restraining catch to TACC " it makes its best estimate of the demand that would perform that function." Dr Townsend also deposes that the Ministry will review the new rate annually to check if it is performing correctly and that (at June 2008) the Ministry was beginning its second review of October fishing year stocks under the new standard which might lead to adjustments, decreasing some DVs and increasing others. Similar evidence was provided by Ms A A Martin, a Ministry officer.Discussion[42] I now turn to the submissions advanced by the applicants as to why the Notice is vulnerable to judicial review.Challenged Fish Stock Deemed Values[43] The applicants' amended statement of claim challenges the DV rates contained in the Minister's Notice in respect of 16 fish stocks. It is unnecessary to itemise these by fishing areas. Nor is it necessary to specify the interim and annual DV rate. [44] The species involved are barracouta, blue nose, gurnard, hapuku, gemfish, spiny dogfish, rig, silver warehou, and trevally. In respect of the DVs relating to spiny dogfish and barracouta counsel ran supplementary and additional arguments.[45] Mr Macfarlane's central submission was that the applicants were entitled to an order from this Court setting aside the DVs because the Minister had failed to take into consideration the state of the fish species involved when he made his decision to review the DVs. [46] Section 8, which set out the purpose of the Act, obliged the Minister, when making any decisions under the Act, and in this instance decisions to impose DVs, to have regard not only to the sustainability of the fish stocks in question but also to their utilisation by commercial fishers. [47] Although Mr Macfarlane did not put it this way, s 8, as well as the environmental and information principles contained in ss 9 and 10, overarched s 75, with the result that before setting DVs the Minister needed to know not only whether a TACC had been exceeded, but also why. The Minister also needed to turn his mind to whether the stock in question could sustain catches above the TACC. None of this information was placed before the Minister because his officials, as they have deposed in their affidavits, considered such information to be irrelevant to DVs and s 75. [48] Mr Macfarlane's second major plank, linked in part to the first, related to a matter of process. In his submission s 75 required a two step process. The first step, which the Minister had overlooked, was to decide whether or not DVs should be varied at all. It was only if the Minister gave an affirmative answer to that first question that s 75(2) would come into play with the Minister going on to set DVs. Again, submitted Mr Macfarlane, the Minister had no information to make a decision at the first phase because he was not informed whether the stock in question could sustain catches above the TACC. [49] There was a linkage between a fishery's utilisation and sustainability and a DV decision. If the Minister was oblivious to the reasons for excessive catches as the applicants contend, then he could not properly make sustainability decisions. Nor was he able to assess whether he was imposing DVs at excessive levels when the fishery could in fact sustain the catch.[50] Woven around and linked to these two primary submissions were various subsidiary submissions. The applicants' proceeding does not attack underlying TAC and TACC decisions operative in respect of the relevant stocks. Nonetheless, submitted counsel, the Minister and his advisors should have been aware of judicial reservations expressed by Miller J in Anton's Trawling Company Ltd & Anor v Minister of Fisheries (HC WN CIV 2007-485-2199, 22 February 2008) and doubts expressed by the Court of Appeal in respect of a 1995 TAC in Anton's Trawling Co Ltd v Smith [2003] 2 NZLR at 23 at [60]. [51] The relevance of those reservations, submitted counsel, was that the final advice submitted to the Minister by his officials, and indeed the Minister's approach to DVs as a mechanism to control over-fishing, was based on the assumption that relevant TACs and TACCs were correct. This assumption had blinded the Minister and led him to an unreasonable conclusion. Because, s 13(2) obliged the Minister when setting a TAC, to consider the maintenance of stock at a level to produce maximum sustainable yield or to alter catch levels in respect of stock whose level was below or above maximum sustainable yields, the Minister ought to have had maximum sustainable yield information before him. He should have considered that information before purporting to use the "tool" of DVs on the basis stated in his letter (supra [34]) that he was not prepared to "tolerate excessive catch" above the available ACE in the fishery. [52] As a matter of statutory interpretation Mr Macfarlane submitted that there was a distinction between the Minister setting a DV for the first time (s 75(1)) and varying DV rates (s 75(7)). Counsel accepted that a s 75(7) variation could be carried out "in the same manner" as any rate set under the provision. However, submitted counsel, although s 75(1) made it obligatory for the Minister to set DV rates for each quota management stock, the section was entirely silent on the matters to be taken into account for the purpose of a s 75(7) variation. Furthermore, although s 75(2) set out relevant considerations for the Minister setting DVs, the provision did not address factors the Minister should consider for a variation. [53] Counsel further submitted the Minister had failed to turn his mind to an "alternative tool" for controlling over-fishing. This was the more draconianprovisions in ss 77-79B of the Act which empowered the Governor-General in Council to specify quota management stocks and tolerance levels where "over- fishing thresholds" apply. Such thresholds, however, do not exist so far as the stock subject to this application are concerned. There is no applicable Order in Council [54] Mr Macfarlane based further submissions on the Final Advice which the Minister received and in particular its Appendix 1, the Deemed Value Standard (2007) (supra [30]). The first "purpose" paragraph of the final paper (ibid) makes it clear that Appendix 1 is a summary of the "new Deemed Value Standard". Its expressed aim is set out earlier in this judgment (supra [30]). [55] Mr Macfarlane focused on the second cluster of bullet points in the Deemed Value Standard (supra [32]) and in particular the suggestion there was to be a review of the fishery to analyse and assess likely reasons for TACC over-catches/ACE breaches and the performance of by-catch fisheries associated with the stock under review. [56] Mr Macfarlane first submitted that none of the bullet points in either the first or second cluster were stipulated as requirements for what he termed the "first stage" of a s 75 review although some might be relevant to the "quantitative (second stage) review" set out in s 75(2). [57] The information sheets attached to the Final Advice paper made no reference to the topics in the second cluster of bullet points and in particular were silent on the likely reasons for TACC over-catches/ACE breaches. [58] It thus followed, before making his decision on the DV Notice, the Minister was not in a position to consider matters stipulated in what the first paragraph of his advice described as "the new Deemed Value Standard". This was because the review of such matters as likely reasons for over-catch, breaches, and the performance of by-catch fisheries were totally absent from the materials before him. [59] In a submission linked to his over-fishing threshold submission Mr Macfarlane argued the Final Advice given to the Minister contained no informationabout the effectiveness of DVs. Although two of the Ministry's deponents, Dr Townsend and Ms Martin, suggested the Ministry's view was that DV effectiveness could be assessed after a period of one year, this was "plainly wrong" because, at the time the Final Advice paper was presented, there had been a six year stretch of DVs from which some conclusions could have been drawn had there been an analysis. Thus, the Minister had been "guided away" from the use of the over-fishing threshold tool which was appropriate in cases where there was deliberate over- fishing, rather than innocent by-catch fishing.Decision on Validity of Notice to Challenged Stock[60] The applicants' submissions are designed to uphold a challenge grounded not only on interpretation issues arising out of ss 8 and 75, but also on an assertion the notice was predetermined and/or unreasonable. There is no need for me to set out the detail of the applicants' pleadings. Counsel locked horns on the same issues. [61] I do not consider that s 8, which sets out the purpose of the Act and sits in Part 2, requires the Minister to consider sustainability matters when making a decision to set DVs under s 75 which sits in Part 4 of the Act. This latter Part relates to the quota management system. [62] I see s 8 as a general statement of policy and an interpretative aid for the Act should it be required. I do not consider s 8 limits the power conferred on the Minister by s 75 to set DV rates. There are clear guidelines contained in s 75, including the mandatory consideration set out in s 75(2)(a) and the various discretionary factors set out in s 75(2)(b), one of which, (vi), is to have regard to any other matters the Minister considers relevant. [63] Support for this interpretation is to be found in the recent Court of Appeal judgment Sanford Limited & Ors v New Zealand Recreational Fishing Council Inc(op cit):[52] This argument requires us to consider the role of s 8 in the context of decisions under the Fisheries Act, which, at a more generic level, leads to aconsideration of the role of purpose provisions in legislation in relation to specific decisions made under specific provisions of the legislation. [53] The precise role occupied by s 8 in the scheme of the Fisheries Act has not been the subject of any detailed consideration in earlier decisions of this Court. In Kellian v Minister of Fisheries CA150/02 26 September 2002, the Court commented at [38] that the Fisheries Act provides a range of ways of achieving the purpose set out in s 8. That appears to envisage that s 8 sets out a broad purpose which the Fisheries Act, and the mechanisms within it is designed to achieve. [54] Section 8 was described by Richardson in "Sustainability in the Fisheries Act 1996: Protect in the Interests of Prosperity?" (1998) 2 (11) Resource Management Bulletin 125 as: Essentially a statement on government policy, to guide decision- makers and assist Courts in interpreting the detail of the Act. That accords with our understanding of the provision. [58] At the end of the day, the decision which the Minister makes must, to use the words of Keith J in Westhaven Shellfish Ltd v Chief Executive of Ministry of Fisheries [2002] 2 NZLR 158 (CA), "bear in mind and conform with the purposes of the legislation". That, in our view, is a different thing from saying that the specific provisions of s 8(2) are mandatory relevant considerations in relation to individual decisions. A similarly global approach to purpose was taken in the context of the Resource Management Act in Bella Vista Resort Ltd v Western Bay of Plenty District Council[2007] 3 NZLR 429 at [25] (CA). [59] When the Minister does apply his or her mind to the issue of whether a proposed decision conforms with the purpose of the Fisheries Act, the purpose to which the Minister must have regard is the utilisation of fisheries resources while ensuring sustainability i.e. that expressed in s 8(1). The definitions in s 8(2) of course guide the application of s 8(1), but the reference in the definition of utilisation to enabling people to provide for their social, economic and cultural wellbeing is not expressed as a purpose of the Fisheries Act itself, but rather as an object of the conserving, using, enhancing and developing of fisheries resources. If Parliament had wished to require that the Minister, in the course of making allowance for recreational fishers, had to direct his or her mind to their social, economic and cultural wellbeing, to the exclusion of the social, economic and cultural wellbeing of any other sector of society, it needed to say so explicitly.[64] There is no evidence to suggest that the Minister, when fixing DV rates in September 2007, did not "bear in mind and conform with the purposes of the legislation". As the Court of Appeal has commented, the specific provisions of s 8(2) are not mandatory relevant considerations in relation to individual decisions.Indeed it is not difficult to see overall conformity with the s 8 purpose when looking at the structure and relevant provisions of the Act. [65] Thus in my judgment, when he made his decision under s 75, the Minister was not obliged by s 8 specifically to consider sustainability issues. [66] Section 75 sets out, in what I consider to be clear and unambiguous terms, the purpose for which the Minister sets DV rates. Section 75(1) obliges the Minister to set DV rates for each quota management stock. [67] The power to vary DV rates in s 75(7) can be exercised "in the same manner". It is not obligatory for the Minister to vary DV rates. Nor is he required to vary them at any predictable interval. If there is to be a variation, however, I consider the power to vary must be governed by s 75(2). The s 75(2)(a) consideration is a mandatory one. DV rates must take into account the need to provide incentives to commercial fishers to acquire or maintain sufficient annual catch entitlement for each fishing year commensurate with the fishers total catch of the relevant stock. [68] The s 75(2)(b) discretionary criteria are broadly cast and are clearly highly relevant. Nonetheless I do not consider a Deemed Value Notice can be successfully attacked solely because the Minister, for example, failed to turn his mind to the market value ((b)(iii)) or the desirability for fishers not landing excess catch ((b)(i)). Section 75 (2)(b)(vi), as I have said, casts the net widely so far as other relevant matters the Minister may consider. [69] This interpretation of s 75, untrammelled by s 8, is consistent with the purpose of DVs articulated in the Parliamentary Select Committee Report on the Fisheries Bill 1996:"Setting deemed valuesThe manner in which deemed values are set is crucial to the new balancing regime. The intent of the balancing regime is to provide incentives for all catch to be covered by ACE. Under clause 75, this is the principle that shall be used to set or vary a deemed value. While there is a requirement for the Minister to have regard to the need to remove the economic benefit of thefish to any person, and to the market value of the fish, there is no statutory upper limit on deemed value levels." (p xxii)[70] Nor, with respect to counsel's carefully crafted submissions, do I consider s 75 requires a two stage process whereby the Minister must first direct his mind to whether or not he will vary DVs and then turn his mind to the variation process. The reason why counsel has suggested this first step requirement is clearly to emphasise that the Minister embarked on the DV variation process without sustainability information relating to the fisheries concerned. It is a matter of common sense that a Minister who decides to exercise a conferred power of delegated legislation will already have made up his or her mind that it is necessary so to do. [71] Had Parliament required a two step process it would have said so. There is absolutely nothing in the policy of the Act or s 75 in particular which suggests that the Minister must embark on some discrete process, covering matters such as feasibility or scope, before embarking on a s 75(7) variation exercise. [72] I turn now to the applicants' interwoven submission (supra [50]-[51]) that the Minister was obliged to consider sustainability issues and in particular should have turned his mind to the likely reasons for TACC over-catches and ACE breaches about which Mr Robinson had given evidence. [73] I consider there is a flaw in this submission. The scheme of the Act bases the entire quota management system in the Part 3 sustainability measures of ss 13 (TAC) and 20 (TACCs). For example s 20(5) prohibits the TACC being set for any management system unless the TAC has already been set under s 13. [74] As discussed (supra [21] and [69]) the clear purpose of DVs is to provide an incentive for fishers to align their ACE with their total catch. It is the TAC which is the first step in the route to calculating ACE. It is not part of the Minister's function, when exercising s 75 powers, to revisit the sustainability issues which drive ss 13 and 19. [75] Certainly the Minister, when setting a TAC, must have stock measures and maximum sustainable yields (defined in s 2) in mind. Sustainability measuresavailable to the Minister when setting TACs and TACCs are envisaged in s 11, with s 11(3) setting out matters to which sustainability measures may relate. [76] The obligations which the Minister has under Part 3 and the TAC and TACC setting mechanisms were not, in my judgment, matters which come into play when the Minister was setting DV rates under s 75. Furthermore, and I here deal with the applicants' submission that set TACs may be suspect in respect of which judicial reservations have been expressed (supra [50]), the mandatory s 75(2)(a) requirement is focused on sufficient ACE grounded as they are in TACs. In my judgment it is not permissible for the Minister, when considering DVs and the s 75(2)(a) requirement, to turn his mind to the possibility that relevant TACs may need revision or have been set faultily. Despite judicial reservations, relevant TACs and TACCs remain lawful until such time as they are changed or struck down by a court. I uphold Mr McCarthy's submission in that regard. (See generally A J Burr Ltd v Blenheim Borough Council [1980] 2 NZLR 1,4 (CA); Wade & Forsyth,Administrative Law (9th ed, 304 – 305). [77] I turn now to counsel's submissions relating to the Minister's apparent failure to review fisheries and to analyse and assess the various matters set out in the Appendix 1 Deemed Value Standard (2007) (supra [32]). [78] I confess to some confusion about the status of the Deemed Value Standard (Appendix 1). Although the Final Advice refers to the standard as being "new" it has no statutory or legal effect I can discern. Mr Macpherson did not dwell on the document in his submissions beyond describing it. Nor is the document the subject of extensive affidavit evidence other than perhaps Dr Towsend's short statement (para 14 of his 13 June 2008 affidavit) that the 2007 Deemed Value Standard identifies "six specific signals that the Minister should monitor in the process of maintaining appropriate DVs". [79] Dr Townsend also deposes that when a TACC changes, it is appropriate to review DVs and that the 2007 Standard identifies a TACC change as a reason to review a DV. A TACC change would clearly alter available ACE.[80] So, although Mr Macfarlane is right when he submits that the Final Advice proferred to the Minister made no mention of two matters specified in the Deemed Value Standard, those being likely reasons for the TACC over-catch/ACE breaches and the performance of by-catch fisheries associated with reviewed stock, I do not consider this submission constitutes a ground for review. [81] The Deemed Value Standard (2007) is neither a gloss on nor an expansion of the s 75 criteria. Rather it is a policy document setting out various circumstances which might trigger a review of DVs. One such matter (the first bullet point) would be when catch is in excess of available ACE. In my judgment the five bullet points in the second cluster under the heading "following a review of the fishery to analyse and assess" probably go no further than indicating that if at some time a fishery is thoroughly reviewed, and such review analyses and assesses the specified matters (such as TACC/catch/ACE breaches, by-catch fisheries performance/changes in the structure of quota/ACE holdings etc) then an accompanying review of DV rates would be justified. [82] In short I consider Appendix 1 to the Final Advice represents new work by the Ministry setting out in a coherent way the circumstances after which a DV review will occur. The document does not constitute a template for the exercise of the Minister's s 75 powers. [83] As a matter of construction, discussed above (supra [22]-[23]), a s 75(7) variation of DV rates must be preceded by the Minister taking into account the s 75(2)(a) incentive criterion. As for s 75(2)(b) matters, the Minister "may have regard" to the criteria listed. As the Court of Appeal observed in Sanford Limited & Ors v New Zealand Recreational Fishing Council Inc (op cit) [94], adopting its earlier decision of New Zealand Fishing Association v Ministry of Agriculture and Fisheries [1988] 1 NZLR 544, 551, the words "have regard to" did not equate with "give effect to". Where there is a mandatory obligation to "have regard" to something the matter must be considered, but it does not necessarily determine or influence the decision. [84] As far as s 75(2)(b) is concerned, the Minister "may have regard to" the six stipulated matters. There is no mandatory obligation on the Minister to consider thesubsection (b) criteria when exercising his s 75(7) variation power. Alternatively, the Minister may in his discretion consider other matters, s 75(2)(b)(vi), which might include some or all of the bullet-pointed matters in the Deemed Value Standard (2007). [85] Thus, although Mr Macfarlane is right that the two Deemed Value Standard items of particular interest to him (supra [55]) were not covered in the Final Advice, I do not consider illegality results. Nor can I see, nor have counsel pointed me to, any clearly irrelevant or impermissible matters contained in the Final Advice proffered to the Minister before he varied DVs. [86] It thus follows that the applicants' challenge to the Notice as it relates to the pleaded fish stock DVs fails. [87] Finally, I reject Mr Mcfarlane's submission that, when exercising s 75 powers, the Minister must consider in the alternative the over-fishing provisions in ss 77 - 79B of the Act. Although this is a tool the Crown may use (although to date it never has) there is no statutory obligation for the Minister to consider it as an alternative to setting DVs under s 75.Challenge to BAR7[88] The applicants contend the DVs for the 2007-2008 year for barracouta in area 7 (being the area off New Zealand's west coast from well north of North Cape to a point to the west of (approximately) Martins Bay) is invalid. [89] Appendix 2 of the Final Advice, which contains information sheets, reveals the DV review clearly focuses on BAR5, a huge region off the south and east coasts of the South Island. [90] The Final Advice paper (para 95) recommended an increase in DV rates for BAR1, BAR4, BAR5, and BAR7. The increases were from $0.19 per kg to $0.25 per kg for the annual rate, and from $0.10 per kg to $0.12 per kg for the interim rate. Differential or ramped rates were recommended for catches in excess of 110% and 120% of a fisher's ACE.[91] Paragraphs 84 – 94 of the Final Advice set out the justification for this increase and in particular for the inclusion of BAR7. The Minister was advised that BAR5 was caught both as a target species and as a by-catch species in the jack mackerel and squid fisheries over the last two fishing seasons. Barracouta in BAR5 had been over-caught. DV invoices of almost $491,000 had been issued for the 2005-06 fishing season. Futhermore a direct request for a DV review had been received from quota owners. [92] The advice to the Minister was that three companies (unnamed) had been responsible for 73% of the DV invoices which suggested they were deliberately choosing to fish in excess of available ACE. Thus an adjustment to the differential DV rates might be an appropriate tool. [93] Referring to its interim position paper, the Final Advice then stated:In the IPP MFish proposed retaining the existing interim and annual deemed value rates for the coming season but proposed an increase to the differential deemed value rates. The deemed value rates for the remaining BAR stocks were also reviewed and it was proposed that they should be adjusted in line with BAR5. This is to make certain there is no incentive for fishers to misreport fish between BAR5 and the other BAR fisheries in an attempt to exploit a lower deemed value rate in a neighbouring stock.[94] This reasoning is expressed in the Minister's letter to stakeholders (supra [33]) where he states he had decided to apply the same differential DV rates across the neighbours to BAR5, which are BAR1, BAR4, and BAR7 because he believes it is appropriate"to set consistent DV rates for stocks that are routinely fished as part of the same fishing trip to avoid any incentive for fishers to misreport catch by taking advantage of the lower DV rate in a neighbouring stock. I believe there is a risk that this may occur in the barracouta fishery and therefore I have increased the DVs for these three stocks in line with BAR5."[95] The Appendix 2 information sheet for BAR7 reveals that, unlike BAR5, there is no catch in excess of ACE and its DV payments amounted to $3,237 wherein 5% of ACE for BAR7 was unused for the 2005-06 fishing season. [96] Paragraph 87 of the Final Advice is the only reference made to BAR7 in the report (other than the Appendix 2 information sheet). In Mr Macfarlane'ssubmission the para 87 reason for changing the BAR7 DVs was ultra vires. As he put it, "innocent by-catch fishers of BAR7 had to pay for restraints the Minister wished to impose on deliberate over-fishers in BAR5". The correct way to deal with illegal exploiters of BAR5 would be by detection and prosecution, or alternatively by imposing over-fishing thresholds. [97] In Mr McCarthy's submission it was legitimate to impose identical DVs for BAR5 and BAR7. If fishers reported their catches with an incorrect attribution of areas then the Ministry's scientific data would be skewed. [98] On this issue I agree with Mr Macfarlane's submissions. Section 75(2)(a) requires the Minister, when setting DVs, to take into account the need to provide an incentive for commercial fishers to acquire or maintain sufficient ACE for each year of at least the total catch of the stock. The information in the Final Advice to the Minister in respect of BAR7 was that there is no catch in excess of ACE and indeed 5% of ACE in the 2005-2006 year was unused. [99] The Minister rightly considered the over-fishing which had occurred in BAR5 when setting DVs for that species. His decision to raise BAR5 DV rates is precisely what s 75, and s 75(2)(a) in particular, contemplate. However, it is an error to extend out to all BAR areas (and I limit myself here to BAR7) the same reasoning without specifically considering whether those other BAR species discretely brought s 75(2)(a) into play. [100] Although arguably the Minister might, in his discretion, be permitted to consider BAR5 factors when setting BAR7 DV rates by virtue of s 75(2)(b)(vi), he has failed to consider a mandatory factor. The BAR7 DV rates have been increased for a reason unrelated to the clear s 75(2)(a) policy as it applies to that barracouta area. [101] The Minister's decision relating to BAR7 in the Notice is thus invalid and should be set aside.Spiny Dogfish[102] The Notice set Deemed Quota for the spiny dogfish species. Interim and annual DVs of $0.15 and $0.30 respectively were set for SPD1, SPD3, SPD4, SPD5, SPD7 and SPD8. [103] The Minister's letter to stakeholders, as it related to the spiny dogfish increases, stated that the DV reflected the most recent port price for the stock which was well above the current annual DV rate. The Minister stated that if the DV was set too far below market price then fishers had no incentive to constrain catch to within ACE holdings. The DV increase thus removed this incentive. [104] Spiny dogfish is primarily by-catch. It is a low value fish in terms of s 72(2). Schedule 6 of the Act allows the species to be lawfully dumped at sea. It has a limited value. Very few North Island fish processors accept it. Some South Island fish processors do. [105] The Appendix to the DV review of the species contained in the Final Advice informed the Minister:Spiny dogfish are found throughout the southern half of New Zealand, extend to East Cape and Manakau (sic) Harbour on the east and west coasts of the North Island respectively. Most of the spiny dogfish caught by the deepwater fleet are taken as a bycatch in the jack mackerel, barracouta, hoki, red cod, and arrow squid fisheries. Spiny dogfish are also taken as bycatch by inshore trawlers, set netters and longliners targeting flatfish, snapper, tarakihi and gurnard.[106] The unreviewed DVs were interim rates of $0.03 per kg and annual rates of $0.05 per kg. In none of the six challenged SPD areas was there any catch in excess of ACE. In SPD1 DV invoices totalled $2,034 with 46% of ACE remaining unused in the 2005-06 fishing season. In SPD3 DV invoices total $2,726 while 26% of ACE remained unused. In SPD4 DV invoices total $5,568 with 40% of ACE being unused. In SPD5 invoices totalled $308 with 43% ACE unused. In SPD7 invoices totalled $1600, 59% of ACE unused. In SPD8 invoices totalled $273 with 67% of ACE unused.[107] The Appendix 2 advice indicated that the issue with SPD3 was one of utilisation. Existing quota owners were concerned that the low DV were undermining their property right. The paper suggests the "problem" arose because of difficulties in setting the DV rates when spiny dogfish entered the quota management system in 2004. Low DV meant the ACE price had been driven down to a level similar to the cost recovery levies which were charged to SPD3 quota holders. Quota holders submitted there is no incentive for fishers to acquire ACE to cover over-catch. [108] The same Appendix suggests that 50% of spiny dogfish caught are landed, mostly by inshore fishers. Deepwater catch was dumped because it takes up freezer space at the expense of higher value species. [109] The increase in DVs for the spiny dogfish species was substantial. The annual DV rate increased from $0.05 to $0.30 per kg. The interim DV increased from $0.03 to $0.15 per kg. [110] Paragraphs 204 to 211 of the Final Advice replicate the concerns expressed in the Appendix 2 information sheet stemming from quota holders. The paper suggests that spiny dogfish fins can be utilised and have a value of $9 per kg. [111] The advice refers to a wide range of views received from stakeholders. A footnote informed the Minister that unwanted spiny dogfish can be discarded within the quota management system but the discarded catch is still subject to ACE or DVs. The advice also referred to the difficulties the Ministry had encountered in 2004 when spiny dogfish was brought into the quota management system. The low annual DV of $0.05 per kg reflected the difficulty in establishing the value of the ACE in a situation where a substantial portion of the catch was dumped. [112] Mr Macfarlane submitted that the SPD DVs were totally unreasonable. Particularly for North Island fishers there was no market. The majority of fishers who caught spiny dogfish as by-catch did not want it, yet were expected to pay ACE based on a port price unavailable to them, in a situation where there was no catch inrelevant areas in excess of TACC. This situation sails close to being unreasonable in respect of a species where 50% of the catch is legally dumped. [113] Mr McCarthy submitted there was a market and market price for spiny dogfish. He referred to Ms Martin's affidavit that the market extended beyond one processing company exporting fins. There were in fact three processors. Fifty per cent of the species catch was in fact landed. [114] Mr McCarthy submitted the fact that some fishers preferred to discard the species in favour of more valuable fish was a subsidiary matter. He observed it was possible to manage the by-catch species under an alternative TAC regime granted on ss 14A-14C. [115] Section 75(2)(b)(iii) and (iv) certainly permit the Minister to have regard to the market value of spiny dogfish stock and also to the economic benefits of the most efficient commercial fisher taking or selling that particular fish. [116] The thrust of the final advice to the Minister, and particularly the Minister's firm statement in his letter (supra [34]) that he was not prepared to tolerate excessive catch above ACE in various fisheries clearly has no application, on the information he had before him, to SPD. The significant increases in SPD DVs, as is apparent from the Final Advice, was for totally different reasons. [117] But the materials before the Minister suggest that the major motive in raising the spiny dogfish DVs was to protect (as a result of submissions) the value of spiny dogfish quota whose owners considered the low DVs and unattractive nature of the fish was depressing the value of their ACE. [118] This clearly, in terms of the s 75(2)(a) mandatory consideration and the policy of the section, cannot be a relevant factor, notwithstanding the s 75(2)(b)(vi) discretionary factor. More importantly, given the low figures of DV invoices and the fact that in none of the SPD areas was catch in excess of ACE, it cannot be contended that the DVs for spiny dogfish was increased to provide incentives to commercial fishers to acquire ACE commensurate with the total catch.[119] My conclusions in relation to BAR7 (supra [100]), and in relation to SPD DVs have not overlooked the section of the Final Advice to the Minister (paras 306 – 312) setting out various "statutory considerations" which included ss 75(2)(a) and 75(2)(b). However, the Final Advice, as I have indicated, makes no attempt to focus s 75 considerations on the species which have been successfully challenged. Had there been such a focus the identified errors might well not have occurred. [120] I thus conclude that the Minister failed to take into account a central mandatory requirement and took into account an impermissible factor when setting DVs for the spiny dogfish species. [121] By classifying the interests of SPD quota holders as an "impermissible" factor, I have not overlooked the broad discretionary factor conferred on the Minister by s 75(2)(b)(vi). I accept that, along with a realisation that the Ministry may have originally pitched SPD DVs at too low a level in 2004, this factor could be legitimately considered by the Minister. However, those discretionary factors do not in my judgment justify the Minister ignoring totally the s 75(2)(a) mandatory consideration when dealing with a species of low value, where ACE in SPD areas were underutilised, and where in respect of the clear Parliamentary policy of Schedule 6, the species can be lawfully dumped. To elevate the two discretionary factors I have just mentioned above the mandatory s 75(2)(a) consideration which was not considered, and to use those two factors as a justification for increasing SPD DVs without more, in my judgment is an error, and arguably unreasonable. [122] For this reason the DVs set for SPD1, SPD3, SPD4, SPD5, SPD7, and SPD8 are invalid. Those DVs in the Notice are set aside.Result[123] The applicants' application for judicial review attacking in its entirety the Fisheries (Interim and Annual Deemed Values) Amendment Notice (No. 2) 2007 dated 23 September 2007 fails.[124] The applicants' application seeking judicial review of the Interim Deemed Value and Annual Deemed Value for BAR7, SPD1, SPD3, SPD4, SPD5, SPD7, and SPD8 succeeds. Those Deemed Values are declared invalid and are set aside.Costs[125] Costs are reserved. The applicants have succeeded in part but not in toto. If counsel are unable to agree on costs leave is reserved to submit memoranda. The applicants' memorandum should be filed five weeks after the date of this judgment and the respondents' memorandum two weeks thereafter. Unless counsel request a hearing I am happy to deal with unresolved costs issues on the papers........................................... Priestley J