ROYAL FOREST AND BIRD PROTECTION SOCIETY OF NEW ZEALAND INCORPORATED v MINISTER OF FISHERIES [2021] NZHC 2282

ROYAL FOREST AND BIRD PROTECTION SOCIETY OF NEW ZEALAND INCORPORATED vMINISTER OF FISHERIES [2021] NZHC 2282 [1 September 2021]IN THE HIGH COURT OF NEW ZEALANDWELLINGTON REGISTRYI TE KŌTI MATUA O AOTEAROATE WHANGANUI-A-TARA ROHECIV-2019-485-752[2021] NZHC 2282UNDER The Judicial Review Procedure Act 2016IN THE MATTER OF an application for judicial review undersections 13 and 20 of the Fisheries Act 1996BETWEEN ROYAL FOREST AND BIRDPROTECTION SOCIETY OF NEWZEALAND INCORPORATEDApplicantAND MINISTER OF FISHERIESFirst RespondentFISHERIES INSHORE NEW ZEALANDLIMITEDSecond RespondentTE OHU KAI MOANA TRUSTEELIMITEDThird RespondentHearing (by VMR): 25 August 2021Counsel: S R Gepp for the ApplicantN C Anderson for the First RespondentB A Scott for the Second RespondentJ P Ferguson for the Third RespondentJudgment: 1 September 2021JUDGMENT OF GWYN J(Application for stay pending determination of appeal)Introduction[1] On 16 June 2021 I gave judgment in this proceeding (the judgment).1 Theapplicant in the substantive proceeding, Royal Forest and Bird Protection Society ofNew Zealand Incorporated (Forest & Bird), had originally sought orders setting asidethe decisions of the first respondent, the Minister of Fisheries (the Minister), madeunder the Fisheries Act 1996 (the Act) relating to the total allowable catch (TAC) andconsequentially the total allowable commercial catch (TACC) for East Coast tarakihifish stocks (the 2019 Decision).[2] I found in favour of Forest & Bird on four of its six causes of action. Becauseof the lapse of time between the filing of the proceeding and the hearing, Forest &Bird amended the orders sought. As I noted in the judgment,2 if I had ordered that the2019 Decision be set aside, the position would revert to the (higher) levels set in 2018.[3] Accordingly, I directed that the Minister's 2019 Decision have continuingeffect, pending the decision to be taken by the Minister in 2021 (with effect from1 October 2021).3 I further directed that in making his 2021 Decision as to the TACand TACC for East Coast tarakihi, the Minister should have regard to the findingscontained in the judgment.4This application[4] The second respondent, Fisheries Inshore New Zealand Limited (FisheriesInshore), has filed an appeal against the judgment and now seeks orders that: thejudgment be stayed pending the final determination of the appeal; and the enforcementof the judgment be stayed pending the final determination of the appeal. Theapplication for stay is brought under r 20.10 of the High Court Rules 2016 and r 12(3)of the Court of Appeal (Civil) Rules 2005.1 Royal Forest and Bird Protection Society of New Zealand Inc v Minister of Fisheries [2021]NZHC 1427.2 At [217].3 Fisheries Act 1996, s 20.4 Royal Forest and Bird Protection Society of New Zealand Inc v Minister of Fisheries, above n 1at [218]-[219].[5] The Minister has filed a cross-appeal seeking clarification of one aspect of thejudgment. The Minister supports the stay application.[6] The third respondent, Te Ohu Kai Moana Trustee Limited (Te Ohu), alsosupports the stay application.[7] Forest & Bird opposes the application for stay.Preliminary question[8] As a preliminary matter, Forest & Bird raises the question whether theappropriate order, if one is to be made, is to stay the judgment or to grant interim reliefin respect of the judgment. Counsel for Forest & Bird, Ms Gepp, refers to r 12(3) ofthe Court of Appeal (Civil) Rules:12 Stay of proceedings and execution(3) Pending the determination of an application for leave to appeal or anappeal, the court appealed from or the Court may, on an interlocutoryapplication,—(a) order a stay of the proceeding in which the decision was givenor a stay of the execution of the decision; or(b) grant any interim relief.[9] Rule 20.10 of the High Court Rules is in similar terms.[10] Forest & Bird says that the judgment granted declaratory relief, in anticipationof the Minister making a TAC decision in 2021, and a stay of proceedings does notcover "declaratory" orders, as opposed to "executory" orders. The appropriateapplication is for interim relief. It relies on Bayer New Zealand Limited v Minister forPrimary Industries, where the High Court held:5[16] Rule 12(3)(b) applies here. A stay of the proceeding or execution doesnot cover declaratory orders. Both counsel agreed that this was the position.[17] MPI nevertheless, also noted that the fact the stay related to a"declaratory order" as opposed to an "executory order" (which is enforceable5 Bayer New Zealand Ltd v Ministry for Primary Industries [2020] NZHC 3470 (footnotes omitted).by execution) meant that the Court, in making a declaration, is merelyauthoritatively indicating that a certain interpretation has always been the trueinterpretation. Therefore, the Court does not create rights but merely indicateswhat they have always been. The authorities suggest that if an appeal is lodgedagainst a declaratory order, conceptually there can be no stay of proceeding.That is why this application must proceed under r 12(3)(b) and the appropriateapproach is to seek interim relief.[11] Forest & Bird says that, consistent with Bayer, there can be no stay of theCourt's declaratory relief, which "merely authoritatively indicates" that a certaininterpretation of the Fisheries Act has always been the true interpretation. Theappropriate application therefore is for interim relief.[12] Fisheries Inshore and the Minister say that the judgment is in substance anexecutory decision, for the Minister to reconsider his decision prior to the 2021 fishingyear.6 It is clear from the evidence on behalf of the Minister that, but for that direction,the Minister would not be reconsidering tarakihi this year, but would defer a decisionuntil next year when the updated stock assessment is available. Therefore a stay is theappropriate remedy.[13] All parties are agreed that nothing in substance turns on the distinction, withthe difference in the test for a stay or interim relief being minimal, but Ms Geppsubmits that the classification of the application is a factor to be added to the mix whendeciding whether to grant interim relief or not.7[14] On this preliminary point I conclude that, although the judgment wasprincipally concerned with the interpretation and application of the Act, [218] and[219] of the judgment were in substance executory, in that they required the Ministerto reconsider his decision prior to the 2021 fishing year. Therefore a stay is theappropriate application in the circumstances.6 Royal Forest and Bird Protection Society of New Zealand Inc v Minister of Fisheries, above n 1,at [216]-[219].7 Jackson v Te Rangi (No 2) [2015] NZHC 1149, [2015] NZAR 1070 at [19]; followed in BayerNew Zealand Ltd v Ministry for Primary Industries, above n 5, at [18].Principles to be applied on stay application[15] In determining whether or not to grant a stay, the Court must weigh the factors"in the balance" between the successful litigant's rights to the fruits of a judgment and"the need to preserve the position in case the appeal is successful".8 Factors to betaken into account in this balancing exercise include:9(a) whether the appeal may be rendered nugatory by the lack of a stay;(b) the bona fides of the applicant as to the prosecution of the appeal;(c) whether the successful party will be injuriously affected by the stay;(d) the effect on third parties;(e) the novelty and importance of questions involved;(f) the public interest in the proceeding; and(g) the overall balance of convenience.[16] As the Court of Appeal noted in Keung v GBR Investment Ltd, that list doesnot include the apparent strength of the appeal, but that has been treated as anadditional factor.10 Provided the grounds point to a bona fide appeal, the Court shouldnot embark on a determination of the merits of the appeal.Submissions in support of stayFisheries Inshore[17] Fisheries Inshore says its appeal is bona fide and raises serious and significantlegal issues. The issues raised by the appeal are purely legal in nature; it is not a case8 Duncan v Osborne Building Ltd (1992) 6 PRNZ 85 (CA) at 87.9 Dymocks Franchise Systems (NSW) Pty Ltd v Bilgola Enterprises Ltd (1999) 13 PRNZ 48 (HC)at [9].10 Keung v GBR Investment Ltd [2010] NZCA 396 at [11]; citing Body Corporate No 188529 v NorthShore City Council (No 6) HC Auckland CIV-2004-404-3230, 11 February 2009.where the Court has made factual determinations which might make a successfulappeal difficult.[18] It submits that its appeal raises issues of considerable importance withsignificant precedential value for the process for setting the TAC for fish stocks wherethe level of the stock is below that which can produce the maximum sustainable yield(MSY), both for East Coast tarakihi fish stock and other fish stocks in New Zealand.[19] Absent a stay, the Minister will be required to make his 2021 decision on thebasis of significant principles which are the subject of the appeal, and in the absenceof the best available information.[20] On the latter point, the evidence before me is that the updated East Coasttarakihi stock assessment (incorporating the East Coast South Island trawl survey),which was expected in early 2021, has been delayed and will not be completed untilNovember 2021 – and thus will not be available to the Minister in time to enable himto set a new TAC for the East Coast tarakihi stock by 1 October 2021.Fisheries Inshore says the new stock assessment is the "best available information" interms of s 10(a) of the Act. That is, it is the best information that, in the particularcircumstances, is available without unreasonable cost, effort, or time.11[21] The evidence filed on behalf of the Minister is that his intention is to make adecision in time to enable the proposed TAC/TAAC adjustments on 1 October 2021.However, that evidence explains that a Consultation Paper for the Minister wasprepared in July 2021 (the Consultation Paper) under unusual time pressure, and thetime available for decision-making is "suboptimal". That has resulted in a truncatedconsultation process. Fisheries Inshore points to that as a further reason why a stayshould be granted.[22] The Consultation Paper prepared for the Minister has proposed three optionsfor reductions in the TACC in 2021, ranging in reductions of between 20 per cent and39 per cent.12 Implementation of any of those options would result, Fisheries Inshore11 Fisheries Act 1996, s 2 definition of "best available information".12 Fisheries New Zealand Review of Sustainability Measures for East Coast Tarakihi for 2021/22(July 2022) (the Consultation Paper).says, in a very significant TACC reduction (in addition to the aggregate reductionresulting from the Minister's 2018 and 2019 Decisions). That, it says, will inevitablyresult in economic loss to commercial fishers – with a direct impact on the tarakihiquota, but also, because of the importance of tarakihi within the inshore trawl fishery,with flow-on impacts on the ability of commercial fishers to catch other importantcommercial species.[23] The submission for Fisheries Inshore is that such economic loss cannot beundone and would render its appeal rights nugatory. It points to earlier cases, also inthe fisheries context, where a stay was granted. In New Zealand Fishing IndustryAssoc (Inc) v Minister of Fisheries (Snapper case), in considering the stay of theMinister's decision to cut the TACC by approximately 30 per cent, the Court of Appealsaid:13There remains the possibility that the Minister's decisions will be set aside.We must approach the matter of interim relief bearing in mind both possibleeventualities, that the decisions may be upheld or they may be set aside. Thequestion is how best to serve the interests of justice for the period until thesubstantive appeal is determined.[24] The Court also concluded that any setback to the Minister's stated desire torebuild the fishery could not be regarded as irreparable to the same extent as theeconomic and social harm that the cuts would cause.14[25] In Squid Fishery Management Co Ltd v Minister of Fisheries (No 2) (Squidcase), the Minister made a decision to close the southern trawl squid fishery.15 TheCourt of Appeal granted a stay of the decision, citing its earlier decision in the Snappercase. The Court weighed the substantial financial cost to the industry of the closureagainst the important consequences in relation to the sea lion population, and notedthat any setback to the Minister's plans was not irretrievable as the "Minister will beable to take account of the impact in a future season when fixing a new limit."1613 New Zealand Fishing Industry Assoc (Inc) v Minister of Fisheries CA82/97, 14 May 1997[Snapper case] at 3.14 At 6-7.15 Squid Fishery Management Co Ltd v Minister of Fisheries (No 2) (2004) 17 PRNZ 104 (CA)[Squid case].16 At [15].[26] In New Zealand Recreational Fishing Council Inc v Minister of Fisheries(Kahawai case), the High Court also granted a stay, pending an appeal by commercialfishers after a successful application for a review by recreational fishers.17 FisheriesInshore points to the High Court's acknowledgement that there was a "real risk of firstinstance fallibility" in the decision,18 and the undesirability of the Minister beingplaced in a position of having to make decisions on a reconsideration "on a legal basiswhich is subject to a bona fide challenge".19[27] In summary, Fisheries Inshore emphasises, first, that granting the stay willenable the Minister's Decision to be reconsidered with clarity on both relevant legaland factual matters.[28] Second, granting the stay will prevent economic damage to the commercialfishers that will inevitably be caused by the TAC/TACC reductions proposed in theConsultation Paper to give effect to the High Court's decision. That loss of revenue,and the impact of the consequent social, cultural and economic harm, cannot beundone.[29] Third, granting the stay will not pose any material sustainability threat to theEast Coast tarakihi stock or interfere with the stock rebuild that has already beenimplemented through the Minister's 2018 and 2019 Decisions.[30] Fourth, if the appeal is unsuccessful, the Minister can take steps to make upany lost time in the rebuild through his subsequent TAC/TACC decisions (as in theSnapper case and Squid case).[31] Fisheries Inshore says granting a stay will allow adequate time for properconsultation on the changes proposed by the Minister, and for this to occur with thebenefit of the Court of Appeal's decision and the updated East Coast tarakihi stockassessment.17 New Zealand Recreational Fishing Council Inc v Minister of Fisheries HC Wellington CIV-2005-404-4495, 11 July 2007 [Kahawai case].18 At [9].19 At [11].[32] Finally, Fisheries Inshore emphasises that there is a strong public interest innot requiring the Minister to make, and then remake, decisions while litigation is stillin progress. Further, it says that Forest & Bird is not the sole representative of thepublic interest in this case; there is a significant section of the public that derivessocial, cultural and economic benefits from the seafood industry and the seafood itsupplies to the public, which would benefit from this stay.[33] Fisheries Inshore also submits that Forest & Bird will not be injuriouslyaffected by the stay and nor will the stay have any significant impact on third parties.The overall balance of convenience is, it says, that the stay should be granted.The Minister[34] The Minister has filed a cross-appeal, which addresses an issue raised byFisheries Inshore that the Minister's approach to adopting a range of possible periodsappropriate to the stock (based on biological and environmental considerations) andthen selecting a period from within that range, having regard to economic, social andcultural considerations, might not be consistent with the judgment. The Minister saysthat, although that approach is not precluded by the judgment, he is concerned that thejudgment does not expressly endorse it either.20 However, counsel for the Minister,Mr Anderson, emphasises that the Minister does not accept Fisheries Inshore'sstatement that it is not possible to "operationalise" the judgment. While there are somechallenges in doing so, the Ministry has (as already noted) moved forward in preparinga consultation paper and undertaking consultation.[35] The Minister has taken steps to give effect to the judgment before 1 October2021. Although the consultation period is not stipulated by the Act, in the normalcourse there would be a six-week period. Here, the Consultation Paper was issued inJuly 2021 with a truncated three week consultation period, which has had particulareffects for tangata whenua.20 Royal Forest and Bird Protection Society of New Zealand Inc v Minister of Fisheries, above n 1,at [105].[36] A decision-making paper is in train with the intention that it will go to theMinister in early September, for his decision by mid-September. That timeframe isnecessary to enable it to be gazetted in time for an October 2021 start to the fishingyear.[37] However, the Minister wishes to ensure that his new TAC/TACC decisions aremade with the benefit of the best available information. He will not have the stockassessment for East Coast tarakihi until at least November 2021. While it is possiblefor the Minister to make his decisions based on the previous stock assessment (updatedin 2019), neither the Minister nor other stakeholders would have the benefit of robustupdated information as to the status of the stock, including the impact on the stock ofthe TAC/TACC reductions in 2018 and 2019. Mr Anderson accepts that the partiescannot wait for perfection, but says that the imminent stock assessment amounts to asignificant body of information that is close to hand and will be the best availableinformation in terms of ss 10 and 2 of the Act.[38] While an immediate reconsideration by the Minister would result in anaccelerated rebuild of the East Coast tarakihi stock, conversely, it risks compromisingpublic confidence in the statutory process, for the reasons advanced byFisheries Inshore.[39] Mr Anderson emphasises that a stay would enable new catch settings to bemade with the benefit of the Court of Appeal's analysis of s 13(2)(b) of the Act and amore robust consultation with stakeholders. He notes that this is the first case in whichthe requirements of s 13(2)(b) have been directly considered.[40] The final submission for the Minister is that there is unlikely to be any materialadverse consequence caused by a delay in setting a new TAC and TACC for East Coasttarakihi. The stock is projected to rebuild as a result of existing management settingsand there is therefore no urgent need for the settings to be adjusted from asustainability perspective.[41] Mr Anderson submits that the consultation undertaken to date on theConsultation Paper will not be wasted. While it has been on specific options, the paperand the responses can be reviewed and considered at a later point (assuming a stay)and, if necessary, further consultation could occur on other options.[42] Mr Anderson also, significantly, notes that if an interim stay is granted theMinister could, depending on how the stay judgment is framed, nevertheless haveregard to the terms of the judgment or the principles of the judgment in relation toother stocks.Te Ohu[43] Counsel for Te Ohu, Mr Ferguson, advanced three grounds in support of thestay application. Te Ohu is a representative body and has particular legal roles andresponsibilities on behalf of iwi and Māori generally.21 In those circumstances, itagrees that the accelerated process for the Minister's decision, if a stay is not granted,will seriously truncate the opportunity for input and render the consultation processsuboptimal and inadequate. Conversely, a stay would enable additional time forconsultation with and input and participation from both Te Ohu and tangata whenua.[44] Secondly, Te Ohu emphasises the importance of the matters raised on appealand cross-appeal. It says that the relevance of social, cultural and economic factors tothe Minister's decision-making under s 13(2)(b) of the Act is of fundamentalimportance to the interests of Te Ohu and iwi, particularly given the unique nature oftheir interests in the East Coast tarakihi fishery, which are founded on and representthe underlying customary rights and interests of iwi as recognised and guaranteedunder Te Tiriti o Waitangi.[45] Third, Te Ohu says that if a stay is not granted the Minister's decision,inevitably reducing the TAC/TAAC for East Coast tarakihi, will cause irreversibleeconomic loss for both Te Ohu and iwi, having regard to their significant interests inEast Coast tarakihi, which include: Te Ohu as an owner of East Coast tarakihi quotashares on trust for certain iwi; Te Ohu as an owner of income shares in AotearoaFisheries Limited, which both directly and indirectly (through Sealord) owns East21 As prescribed in ss 32 and 35(1) of the Māori Fisheries Act 2004.Coast tarakihi quota shares; and iwi, both directly as the owner of East Coast tarakihiquota shares, and indirectly through income shares in Aotearoa Fisheries Limited.[46] Te Ohu notes that those interests comprise Treaty settlement redress pursuantto the Deed of Settlement between the Crown and Māori, dated 23 September 1992(the Fisheries Settlement). Te Ohu says that upholding the value of the redress underthe Fisheries Settlement (or not unreasonably reducing that value) is a factor thatshould reasonably weigh in favour of the grant of a stay.Submissions opposing stay[47] Ms Gepp emphasises the importance of putting the judgment and theapplication for a stay in context. In 2018 the Minister made a decision that a rebuildperiod appropriate to the East Coast tarakihi Stock was 10 years. He set TAC/TACCto commence that process and signalled that further reductions would be necessary in2019. However, in 2019 that period was changed to 25 years (or 20 years, if regard ishad to the Industry Rebuild Plan).[48] The effect of staying the judgment is that either: the 1 October 2021 decisionwill be made in accordance with an incorrect interpretation of s 13(2)(b); or nodecision will be made in 2021, in which case any reassessment will not take effectuntil the tarakihi fishing year commencing in October 2022 at the earliest. Overall,that would amount to a four-year delay. While there is a theoretical potential to makeup that delay, if the appeal is ultimately unsuccessful, that would involve verysignificant reductions in the TAC/TACC over a short timeframe.[49] Conversely, if the High Court decision is not stayed and the Minister makesTAC/TACC decisions for tarakihi in 2021 in accordance with the judgment and thereis subsequently a successful appeal of the judgment, the 2021 decisions will applyonly until the next sustainability round for East Coast tarakihi.[50] Ms Gepp emphasises that it is not Forest & Bird itself which may be subject toinjurious effect, but rather the public interest in environmental sustainability – it is thepublic interest in rebuilding the fish stock that is relevant.[51] Other grounds of opposition include:(a) The findings in the judgment are relevant to the Minister's TAC/TACCdecisions for all fish stocks that are below a level that can produce MSY.(b) The Minister has in fact already commenced consultation on fish stocksfor the September 2021 sustainability round.(c) There are sustainability implications for a range of fish species if theMinister approaches those sustainability decisions on the basis of anincorrect interpretation of s 13(2)(b)(ii) of the Act, but there will be noremedy available if the judgment is stayed at the time the Ministermakes those decisions.[52] Forest & Bird also submits Fisheries Inshore's basic economic analysis doesnot take into account the longer term benefits of rebuilding the tarakihi fishery, whichmust be weighed against the possible short-term economic impact of not granting astay. Even if Fisheries Inshore's appeal is successful and no stay is granted it wouldhave had one year of a "conservative" catch which will give rise to longer termcommercial benefits.[53] As to the submission that the Minister's decision should await the updatedstock assessment of East Coast tarakihi, Forest & Bird says that fisheries managementis iterative and there will often be new information anticipated to be produced at somepoint in the future. The "best available information" is the best information currentlyavailable. Forest & Bird also says that no adequate explanation has been given forwhy the 2021 stock assessment could not have been completed in time to be factoredinto a decision by October 2021.[54] Overall, in weighing the factors referred to in Keung:22(a) Forest & Bird questions the strength of the appeal, noting that theMinister has lodged a cross-appeal on one point only which, Forest &22 Keung v GBR Investment Ltd, above n 10.Bird says, appears to challenge the manner in which the judgment isexpressed rather than the substance of the judgment.(b) Forest & Bird represents the public interest in environmentalsustainability. That interest is injuriously affected by allowingoverfishing to continue and further postponing the return of East Coasttarakihi to maximum sustainable yield.(c) Fisheries Inshore has already had the benefit of two years with theTAC/TACC that was found by the judgment to have been unlawfullyset. If Fisheries Inshore's appeal is successful, the Minister can revisitthe TAC/TACC and adjust it accordingly. At worst, that outcome wouldmean that for one year (or the time taken for the appeal to bedetermined) a lower TAC/TACC is set and the stock is rebuilt slightlyfaster. The appeal is not rendered nugatory in those circumstances.Where an appeal is not rendered nugatory, an applicant for stay faces ahigh hurdle. Ms Gepp says that there is a clear difference on theauthorities between adverse economic impact and being "nugatory".(d) Fisheries Inshore is not bona fide in seeking the stay. It has an interestin delaying implementation of the judgment for as long as possible inorder to retain the current TAC/TACC.(e) The Industry Rebuild Plan23 is irrelevant to whether a stay of thejudgment should be granted. Industry can continue to implement theIndustry Rebuild Plan measures regardless of the Minister'sTAC/TACC decisions.[55] Forest & Bird's fear is that even if the Minister were to attempt to "make uptime later", he will start at "year one" and the rebuild period overall will beenlarged/delayed.23 The Industry Rebuild Plan is described at [180]-[184] of the judgment.[56] Ms Gepp distinguishes the Snapper,24 Squid,25 and Kahawai cases,26 on thebasis of their significantly different factual context. In the Snapper and Squid casesthe fishery would have been closed immediately. Here, what will occur, absent a stay,is a reduction in the TACC of 10-30 per cent. That is a very different scenario. Inaddition, in the Squid case, although there were only two weeks of the season left, theevidence was that that was the critical period for squid fishing and would have resultedin a loss to fishers of $4 million per week; there were no countervailing benefits forthe sea lions. In the Kahawai case, it was acknowledged that there was no realprejudice to either party because it was an allocation case. It was thereforesignificantly different from this case.[57] Ms Gepp also emphasises that context is important. The Snapper case, theSquid case and the Kahawai case were heard in 1997, 2004 and 2007, respectively.There has been a significant passage of time and evolution of understanding of theconcepts of sustainability since those decisions. They must be read in their context.[58] As to the overall balance of convenience, the appeal will not be renderednugatory if a stay is not granted. The Court of Appeal can still do justice to theappellant. If the Court finds an order is necessary it could be limited to the periodnecessary to enable the updated stock assessment to be completed and considered.Discussion[59] I turn now to the relevant factors set out in Keung and any other factors ofparticular relevance to this case.Bona fide appeal; novelty and importance of the questions involved[60] I accept that the appeal is bona fide. I also accept that the legal questions whichare the subject of the appeal are of significance beyond this case. As Mr Andersonobserved, no other case has previously expressly considered the interpretation ofs 13(2)(b) of the Act.24 Snapper case, above n 13.25 Squid case, above n 15.26 Kahawai case, above n 17.Appeal rendered nugatory[61] Fisheries Inshore says that, absent a stay, its appeal will be rendered nugatorybecause of the economic impacts of the decision the Minister will then proceed tomake. It says those impacts will be irreversible.[62] I accept there will be short-term economic impacts on commercial fishers ifthe Minister proceeds to make a decision reducing the TAC/TACC, and that is a factorthat will weigh in the overall balance.[63] However, I do not accept that declining a stay would render Fisheries Inshore'sappeal nugatory. The appeal relates to questions of law not disputed facts. The legalprinciples on which the appeal turns will continue to have application to futuredecisions about the East Coast tarakihi stock, as well as to other fish stocks. Counselfor Fisheries Inshore, Mr Scott, acknowledges that the appeal on the interpretationissues will not be rendered nugatory if a stay is not granted.Whether the successful party will be injuriously affected by the stay; the public interestin the proceeding[64] Fisheries Inshore says there will be no material adverse impact if the stay isgranted, because the TACC has already been reduced by the Minister's 2019 and 2019decisions, the Industry Rebuild Plan is in place, and the industry is committed to arebuild of the fish stock.[65] The submissions for the Minister also note that although the options proposedin the current consultation document would each shorten the rebuild period, East Coasttarakihi stock is projected to rebuild as a result of existing management settings.Accordingly, there is no urgent need for the settings to be adjusted from a sustainabilityperspective.[66] However, the central issue in the judgment, and the subject of FisheriesInshore's appeal, is the statutory obligation to return the stock to MSY within a "periodappropriate to the stock". While Fisheries Inshore appeals those aspects of thejudgment that discuss how to give effect to that test, it is clear that the statutory test isnot satisfied merely by saying some cuts have been made and the fishery is the processof rebuilding.[67] The Consultation Paper records:27When considering a rebuilding strategy for a stock as depleted as East Coasttarakihi, the main objective should be to take decisive action to move the stocksufficiently far above both the hard and soft limits as soon as possible and, inparticular, to minimise the risk of the stock declining further.[68] While the Industry Rebuild Plan is acknowledged by the Minister, theConsultation Paper notes that the efficacy of the measures in it remains uncertain atpresent.28 It does not impact on my decision whether to grant a stay.[69] Fisheries Inshore relies on three previous cases in the fisheries context in whicha stay was granted. Those authorities have limited relevance in the context of thiscase, principally because of highly relevant factual differences. There is also someforce in Ms Gepp's submission that there has been a significant passage of time sinceeven the last of those cases and an evolution of understanding of the concepts ofsustainability, which means they must be read carefully, in their context.[70] The 1997 Snapper case concerned the Minister's decision in setting the TACCfor a snapper fishery.29 The High Court refused interim relief and the question for theCourt of Appeal was whether the Minister's decision should be allowed to take effector interim declarations should continue.[71] The Court of Appeal approached the case on the basis that it had to bear inmind both possible eventualities – that the Minister's decisions may be upheld or maybe set aside. It had to consider how best to serve the interests of justice for the perioduntil the substantive appeal was determined.[72] The Minister's decision had set the TACC at 3,000 tonnes, a reduction fromthe previous year. Eight months of the fishing year had passed. In total more than3,000 tonnes of snapper had already been taken by commercial fishers. The Court was27 Consultation Paper, above n 12, at [37].28 At [59].29 Snapper case, above n 13.told that allowing the Minister's decision to take effect would result in the immediateshutdown of snapper fishing and downstream processing, for the remainder of the year.That would cause irreparable harm to the industry. On the other side of the ledger, ifthe substantive review was unsuccessful, the Minister could make adjustments to theTACC in future fishing years. Accordingly, the Court of Appeal decided it would notimplement the Minister's decision "for this further short period" and would allow theinterim declarations to continue, subject to an early appeal fixture.[73] The Snapper case is distinguishable from this case: it involved the extensionof interim relief for a short period only; there were only four months left of the fishingyear; and, as the new TACC had already been caught, closure of the fishing year wouldbe inevitable. Here, the period of a stay will be longer. Mr Scott advises that an appealfixture may be available in the first quarter of 2022, earlier if an urgent fixture weregranted. Without urgency it is realistic to assume that the Court of Appeal's judgmentwill not be available to inform the Minister's decision for the 2022 fishing year.Although Mr Scott submits that on any of the options proposed in the ConsultationPaper the East Coast tarakihi fishery would have to close, that submission goes furtherthan the evidence filed on behalf of Fisheries Inshore. Here, the Minister's decisionwould not take effect immediately and part way through a fishing year. Logicallycommercial fishers would have an opportunity to plan ahead and mitigate or spreadeconomic consequences to a greater extent.[74] In the 2004 Squid case the Minister had imposed a maximum allowablefishing-related mortality limit of 62 sea lions in the relevant squid fishery.30 TheHigh Court dismissed the Squid Fishery Management Co's application for review anddeclined a stay, concluding that it was not necessary to preserve the appellant'sposition.[75] In granting a stay, the Court of Appeal held the critical factors were that thesquid season lasts only three months, and the Minister's decision would mean a lossof approximately $4 million per week of what remained of the season. It was likely30 Squid case, above n 15.that loss would never be recovered. Conversely, 24 sea lions would likely be lost butthat consequence was not irretrievable in the medium term.[76] The Squid case is not directly analogous: it was part way through a very shortseason and closure of the fishery was an inevitable consequence of not allowing thestay; and the economic losses were very significant, within a short period.[77] In the 2007 Kahawai case groups representing recreational fishers brought ajudicial review application of the Minister's decision allocating the TAC and TACCfor the kahawai fishery.31 The High Court had granted relief to the recreational fishers,and a body representing commercial fishing interests then sought a stay of theHigh Court decision. A factor in the High Court's decision to grant a stay of thejudgment was that the Court's directions to the Minister were likely to result in arevised allocation favourable to recreational fishers, but recreational fishers had notcaught their statutory allowances in recent years and were unlikely to do so in the nextyear. Accordingly, there was no real prejudice to either party if the status quo remaineduntil the appeal was determined.32 As the stay would not adversely affect recreationalfishers, they were not "deprived of the fruits of their judgment". The Court also notedthat the date for hearing the appeal was close.[78] The Kahawai case too is distinguishable: it was an allocation case; and, as theCourt expressly noted, there was no real likelihood of prejudice to either party if thestay was granted. In the Kahawai case the Court also considered the impact of notgranting a stay on the integrity of public administration. Both Fisheries Inshore andthe Minister say that is a directly relevant consideration in this case too. I address thatquestion later in this judgment.[79] I accept that there will be a short-term economic impact on commercial fishersif the Minister proceeds to make a decision based on any one of the threeoptions in the Consultation Paper. However, I agree with Forest & Bird thatFisheries Inshore's economic analysis is incomplete. As the Consultation Paper notes,31 Kahawai case, above n 17.32 At [13].Fisheries New Zealand expects that restoring the East Coast tarakihi stock will bringpotential longer-term benefits:33• Increase the resilience of tarakihi to years of poor or below averagerecruitment and to the negative effects of climate change, potentiallyresulting in a more stable fishery;• Improve catch rates in the long term for all sectors;• Provide higher revenues for the fishing industry through a fully rebuiltstock which will enable higher catches dues to the stock beingapproximately 250% higher than the current level;• Result in tarakihi becoming more widespread in key commercial fishinggrounds and areas accessible to customary and recreational fishers.[80] The potential economic impact of not granting a stay has to be assessed in theround. If a stay is granted, short term detriment to commercial fishers will be avoidedor deferred. But the public interest – including the commercial interests of thoserepresented by Fisheries Inshore and Te Ohu – will be affected by a potentiallysignificant delay (if the appeal is unsuccessful) in the Minister implementing furtherreductions in the TAC/TACC to enable rebuild of the stock within an appropriateperiod.Other relevant factors[81] There are several other factors relevant to my consideration:(a) truncation of the usual consultation period;(b) absence of best available information;(c) integrity of the Ministerial decision-making process; and(d) impact on the Treaty settlement process.[82] I discuss each of those in turn.33 Consultation Paper, above n 12, at [52] (footnotes omitted).Truncation of the usual consultation period/absence of best available information[83] As already noted, at the time of the hearing before me in 2020 it was anticipatedthat an updated stock assessment for East Coast tarakihi would be completed in early2021.34 It is now apparent that the updated stock assessment will not be available untilNovember 2021, in part because of COVID-19 lockdown restrictions in theintervening period.[84] I accept that it is at least arguable that the updated stock assessment, due inNovember 2021, is the "best available information" in terms of ss 2 and 10 of the Act.I put some weight on the evidence for the Minister that, without the specific directionin the judgment that the Minister make his decision to have effect from 1 October 2021with regard to the findings in the judgment,35 he would have deferred embarking onthe consultation process and then making a decision until the updated stock assessmentwas available to inform the process. That is a factor that weighs in my overallassessment.Integrity of the Ministerial decision-making process[85] Fisheries Inshore relies on the Kahawai case where Harrison J said:36It is undesirable that the Minister should be placed in the position of having tomake allocation decisions on or before 1 October 2007 on a legal basis whichis subject to bona fide challenge by two of the most interested parties andwhich, before the next allocation is undertaken, the Court of Appeal may findwas wrong.[86] The Minister supports the submission on this point.[87] I accept that in an ideal situation the Minister would not be placed in theposition of having to make a statutory decision in the knowledge that a future courtruling might require him to remake that decision. That scenario may give rise touncertainty on the part of affected members of the public, or cause them to wonderabout the decision-making process.34 Royal Forest and Bird Protection Society of New Zealand Inc v Minister of Fisheries, above n 1,at [46].35 At [218] and [219].36 Kahawai case, above n 17, at [11].[88] However, the reality is that the same concern could be raised in many caseswhere there is a challenge to a Minister's decision. Weighed against that perceptionis the possible public perception if a stay is granted. As the Court of Appeal said inthe Snapper case, the Minister's obligation to manage the fishery is not to be"frustrated or highjacked by the industry".37 There the Court noted that by interimrelief the industry would have achieved all they sought in the proceedings even thoughthe High Court had found against them. As the Court put it, for two successive yearsthe Minister's decisions, made for the purpose of conserving the snapper fishery,would have been defeated without any decision determining that they were in anyrespect unlawful – "indeed with the decision of the High Court to the contrary."38[89] Here, as Forest & Bird observes, there is a potentially significant delay inimplementing the Minister's decision if the appeal is unsuccessful.[90] I conclude that there are disadvantages in terms of public perception of theprocess in either eventuality, and therefore the arguments on this point do not greatlyassist in the overall balancing exercise.Impact on the Treaty settlement process[91] The effect of the Fisheries Settlement and its codification in the Treaty ofWaitangi (Fisheries Claims) Settlement Act 1992 was that, in return for allocation ofquota and other benefits under the Deed for Settlement, Māori endorsed the quotamanagement system (QMS) and acknowledged that it is a lawful and appropriateregime for the sustainable management of commercial fishing in New Zealand.[92] All claims (current and future) by Māori in respect of commercial fishing,whether founded in the Treaty of Waitangi or otherwise, were acknowledged, satisfied(by the benefits provided to Māori by the Crown under the Māori Fisheries Act 1989,the Treaty of Waitangi (Fisheries Claims) Settlement Act 1992, and the Deed ofSettlement), and fully settled.3937 Snapper case, above n 13, at 3.38 At 4.39 Treaty of Waitangi (Fisheries Claims) Settlement Act 1992, s 9.[93] The operation of decisions under the QMS and their impact of the value ofquota held by iwi and by Te Ohu are part and parcel of that settlement. As Forest &Bird submits, the value of redress given under the Deed of Settlement is notunreasonably reduced and the integrity of Treaty settlements is not damaged, by arequirement for the Minister to make a decision on TAC/TACC in accordance with thelaw.Conclusion[94] Having regard to all of those factors, if the object is to arrange matters so thatthe appellate court is able to do justice between the parties, whatever the outcome ofthe appeal,40 then I consider the overall balance does not favour the granting of a stayuntil the appeal is heard. However, I conclude that it is appropriate to grant a stay untilthe Minister has received and had the opportunity to consider the updated stockassessment, to enable him to make his decision based on that updated information.That will also allow for any further necessary consultation.[95] If Fisheries Inshore wishes to expedite the hearing of its appeal, as it hasindicated, it is of course open to it to seek an urgent fixture which may reduce any gapbetween the stay ceasing to have effect and a judgment on its appeal.Result[96] I grant the application for a stay of that part of the judgment at [218] and [219],which required the Minister to make a decision in relation to the TAC and TACC forthe East Coast tarakihi fish stocks with effect from 1 October 2021, until the Ministerhas received and considered the updated East Coast tarakihi stock assessment.40 Minnesota Mining & Manufacturing Co v Johnson & Johnson Ltd [1976] RPC 671 (CA) at 676,cited in New Zealand Insulators v ABB Ltd 18 PRNZ 459 at [13].[97] I invite counsel for the Minister to submit a memorandum as to the period thatwill be necessary for him to consider the updated stock assessment. I also reserveleave to all parties to come back to the Court if any further clarification is necessary.Gwyn JSolicitors:Crown Law, WellingtonChapman Tripp, WellingtonKāhui Legal, Wellington