ROYAL FOREST AND BIRD PROTECTION SOCIETY OF NEW ZEALAND INCORPORATED v MINISTER OF FISHERIES [2021] NZHC 1427

ROYAL FOREST AND BIRD PROTECTION SOCIETY OF NEW ZEALAND INCORPORATED vMINISTER OF FISHERIES [2021] NZHC 1427 [16 June 2021]IN THE HIGH COURT OF NEW ZEALANDWELLINGTON REGISTRYI TE KŌTI MATUA O AOTEAROATE WHANGANUI-A-TARA ROHECIV-2019-485-752[2021] NZHC 1427UNDER 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: 23-24 July 2020Counsel: S R Gepp and M C Wright for the ApplicantN C Anderson and K F Gaskell for the First RespondentB A Scott and B J M McIntosh for the Second RespondentJ P Ferguson and T T H Hullena for the Third RespondentJudgment: 16 June 2021JUDGMENT OF GWYN JTable of ContentsIntroduction [1]The parties [3]Tarakihi management [9]The general decision-making process for setting a TAC and TACC [11]The setting of a TAC for East Coast tarakihi [17]The Fisheries Act 1996 [20]The Minister's decisions [26]The Minister's 2018 decision [27]Advice and submissions to the Minister [30]The decision [32]The Minister's 2019 decision [37]Advice and submissions to the Minister [38]The decision [44]Forest & Bird's causes of action [48]First cause of action: error of law – period appropriate to the stock (s 13(2)(b)(ii)) [56]Submissions [56]Forest & Bird [56]The Minister [64]Fisheries Inshore [67]Te Ohu [69]Analysis [70]What does the statute require? [71]How did the Minister go about making his decision? [94]Conclusion [109]Second cause of action: error of law – probability of achievement [110]Submissions [110]Forest & Bird [110]The Minister [112]Fisheries Inshore [113]Te Ohu [114]Analysis [115]Is the Minister required to identify a probability level at the time of setting a TAC? [116]Did the Minister identify a probability level in his 2019 Decision? [119]Does adopting an approach with a probability of achievement of 50 per cent amount to an errorof law, based on the requirements of s 13(2)(b)? [121]Conclusion [127]Third cause of action: relevant consideration – HSS guidance on acceptable probability [128]Submissions [129]Forest & Bird [129]The Minister [132]Fisheries Inshore [134]Te Ohu [137]Analysis [138]The relevant content of the HSS [139]The status of the HSS [143]Whether the Minister did in fact have regard to what the HSS says about acceptable levels ofprobability when he made his 2019 Decision [158]Conclusion [168]Fourth cause of action: irrelevant consideration – the Industry Rebuild Plan [169]Submissions [169]Forest & Bird [169]The Minister [172]Fisheries Inshore [177]Te Ohu [178]Analysis [179]The Industry Rebuild Plan [180]Was the Industry Rebuild Plan an irrelevant factor in setting the TAC? [186]Was the Industry Rebuild Plan material to the Minister's 2019 Decision? [194]Conclusion [198]Fifth cause of action: unreasonableness [201]Submissions [201]Forest & Bird [201]The Minister [202]Fisheries Inshore [207]Te Ohu [210]Analysis [211]Conclusion [213]Sixth cause of action [214]Summary [215]Relief [216]Outcome [218]Costs [220]Introduction[1] The Royal Forest and Bird Protection Society of New Zealand Incorporated(Forest & Bird) challenges decisions by the Minister of Fisheries (the Minister) inrelation to the total allowable catch (TAC) (and consequentially the total allowablecommercial catch (TACC)) for East Coast tarakihi fish stocks. The relevant decisionswere made in September 2019 and related to the fishing year commencing1 October 2019.[2] Forest & Bird challenges the Minister's decisions on the basis of error of law,failure to have regard to a relevant consideration, reliance on an irrelevantconsideration, and unreasonableness.The parties[3] The applicant, Forest & Bird, is an incorporated society under the IncorporatedSocieties Act 1908. Under cl 2 of its constitution, Forest & Bird's main purpose is to"take all reasonable steps within the power of the Society for the preservation andprotection of the indigenous flora and fauna and the natural features of New Zealand."Forest & Bird participates in local, regional, national, and international marineadvocacy to give effect to its constitutional purpose.[4] Fisheries New Zealand (FNZ) is a business unit of the Ministry for PrimaryIndustries (the Ministry). FNZ is responsible for the implementation of the FisheriesAct 1996 (the Act), on behalf of the first respondent, the Minister. This includes themanagement of wild fish stocks (such as East Coast tarakihi), aquaculture, and thewider aquatic environment. FNZ explained that a major part of its role is to assist theMinister in "setting catch limits and allowances that limit the total amount of fish thatcan be taken from a fish stock, while fairly allocating the resource between thecompeting sectors." FNZ undertakes a range of functions in its work with tangatawhenua and stakeholders who have an interest in fishing or the effects of fishing onthe aquatic environment.[5] The second respondent, Fisheries Inshore New Zealand Limited (FisheriesInshore), represents quota owners and commercial fishers across all the primaryinshore fish stocks, including tarakihi.1 Amongst other things, Fisheries Inshoreroutinely makes submissions in response to consultation proposals from government.The Minister has an obligation to consult with organisations the Minister considers tobe representative of classes of persons having an interest in the stock.2[6] The third respondent, Te Ohu Kai Moana Trustee Limited (Te Ohu), is thetrustee of Te Ohu Kai Moana, a trust established under the Māori Fisheries Act 2004.3Following the fisheries settlement reached between Crown and Māori in 1992, theCrown transferred assets to Te Ohu (or its predecessors) for the benefit of iwi andMāori. This included the transfer of quota shares in fish stocks.4 Te Ohu is requiredto allocate and transfer the quota shares to iwi and, pending such allocation andtransfer, to hold and manage the settlement assets.5[7] Te Ohu's functions include funding research into sustainable management offisheries, as well as protecting and enhancing the interests of iwi and Māori infisheries, fishing, and fishing related activities. It actively engages in the review ofsustainability measures by FNZ. This review forms part of the Minister'sdecision-making process in setting the TAC and TACC for each fishing year. Te Ohualso makes submissions to the Minister on these matters. The Minister consults withTe Ohu as a body representative of Māori interests in the fish stock or the effects onthe aquatic environment.6[8] Te Ohu also has a direct proprietary role in the East Coast tarakihi fishery: itholds quota for Ngāi Tai, Te Whānau a Apanui, Ngāti Porou, Rongowhakaata,Te Aitanga a Mahaki, Te Atiawa (Wellington), Ngāti Toa, Ngāi Tahu, Rangitāne oWairau and Ngāti Toa.1 Fisheries Inshore Limited and Te Ohu Kai Moana Trustee Limited were joined as respondents tothe proceeding by Mallon J on 9 April 2020: Royal Forest & Bird Protection Society of NewZealand Inc v Minister of Fisheries [2020] NZHC 741.2 Fisheries Act 1996, s 12.3 Māori Fisheries Act 2004, ss 31, 32 and 33.4 Treaty of Waitangi (Fisheries Claims) Settlement Act 1992.5 Māori Fisheries Act, s 34 and 130.6 Fisheries Act, s 5(b): the Minister is required to act in a manner consistent with the Treaty ofWaitangi (Fisheries Claims) Settlement Act 1992.Tarakihi management[9] Tarakihi is a species of fish that is managed under the Act. It is a relativelylong-lived species that reaches at least 40 years of age. Females mature at six years,after which they produce large numbers of pelagic (floating) eggs several times duringeach protracted summer/autumn spawning season. Following a 7–12 month pelagicphase, where the fertilised eggs, larvae and juvenile fish tend to remain in surfacewaters, East Coast tarakihi mainly settle in nursery grounds off the east coast of theSouth Island, primarily the Canterbury Bight and Pegasus Bay. As they grow olderthey move progressively further northward, with the highest proportions of older fishfound off the east of Northland.[10] There are eight fishery quota management areas for tarakihi (known as TAR 1,TAR 2, TAR 3, TAR 4, TAR 5, TAR 7, TAR 8, and TAR 10), but tarakihi is managedas five stocks – East Coast tarakihi is one of those stocks. The East Coast tarakihistock is made up of the eastern part of TAR 1, all of TAR 2, all of TAR 3, and the partof TAR 7 that is in eastern Cook Strait. There is scientific evidence to support theassumption that these areas are a single biological stock, or population, and that itmakes sense to manage them as a single unit. The East Coast tarakihi stock containsthe majority of the tarakihi catch.The general decision-making process for setting a TAC and TACC[11] A primary mechanism for managing the sustainability of fisheries is by theMinister setting the TAC and TACC for each fish stock. The TAC, in relation to anyquota management stock, means a total allowable catch as set or varied for that stockby notice in the New Zealand Gazette under ss 13 or 14 of the Act. The TACC is theproportion of the TAC which can be harvested by commercial fishers, once allowanceshave been made for non-commercial catch and other forms of mortality.77 Quota is then allocated in the form of quota shares to quota owners. Quota shares generate anannual catch entitlement for commercial fishers under their fishing permits. The amount of theannual catch entitlement that can be caught is a function of the TACC. Currently, there areapproximately 164 quota owners with tarakihi quota shares in the East Coast tarakihi fish stocks,and 199 commercial fishing permit holders who catch those entitlements utilising an annual catchentitlement.[12] Before considering the current status of the East Coast tarakihi stock, it isnecessary to summarise the key concepts which underpin the decision-makingrequired of the Minister under the Act when setting a TAC (and from this, the TACC).These concepts are set out in two Ministry policy documents used to guide decision-making under the Act: the Harvest Strategy Standard (HSS),8 and the associatedOperational Guidelines (HSS Operational Guidelines).9[13] The HSS has three core elements, which were explained in the affidavitevidence of Dr Pamela Mace, Principal Advisor, Fisheries Science, at FNZ:(a) A specified target about which a fishery or stock should fluctuate, basedon the requirement in the Act that fish stock should be maintained at orabove a level that can produce the maximum sustainable yield (MSY).The HSS explains the MSY as the largest long-term average catch oryield that can be taken from a stock under prevailing ecological andenvironmental conditions. It is the maximum use that a renewableresource can sustain without impairing its renewability through naturalgrowth and reproduction. In particular, fisheries should be managed tofluctuate around a target based on MSY-compatible reference points orbetter, with at least a 50 per cent probability of achieving the target(which is essentially the same thing as fluctuating around the target).These targets are either:(i) BMSY, the fish biomass (population size in terms of weight)associated with MSY; or(ii) FMSY, the fishing mortality rate (proportion of the stock removedeach year by fishing) associated with MSY; or(iii) approximations (proxies) to these quantities.8 Ministry for Primary Industries Harvest Strategy Standard for New Zealand Fisheries (October2008). The proper role of the HSS is an issue for consideration under the third cause of action at[128]–[168] below.9 Ministry for Primary Industries Operational Guidelines for New Zealand's Harvest StrategyStandard (June 2011).(b) A soft limit, that triggers a requirement for a formal, time-constrainedrebuilding plan if the existing stock falls below that level. The defaultsoft limit is ½ BMSY or 20 per cent B0, whichever is higher (where B0 isthe biomass of fish in the absence of fishing). In the case of tarakihi,the biomass reference points are usually expressed in terms of SB0(where SB0 refers to the spawning biomass, which is the mature part ofa fish stock). The soft limit will be breached when the probability thatstock biomass is below the soft limit is greater than 50 per cent. A stockthat is below the soft limit will be designated as depleted (overfished)and in need of rebuilding.(c) A hard limit, below which fisheries should be considered for closure.The default hard limit is ¼ BMSY or 10 per cent SB0, whichever is higher.The hard limit will be considered to have been breached when theprobability that stock biomass is below the hard limit is greater than50 per cent. A fishery that is determined to be below the hard limit willbe designated as collapsed.[14] Dr Matthew Dunn, Principal Scientist at the National Institute of Water andAtmospheric Research Limited (NIWA), who gave evidence for Forest & Bird,explained MSY in this way:It is assumed that a stock reduced in size by fishing will try to rebuild/recoverif fishing is removed; there is considerable evidence for this being true. Asustainable yield from a fish stock can, in theory, be achieved by taking onlythe fish that represent population growth from each year, meaning the stocksize remains the same from one year to the next. However, population growthvaries with stock size. When a stock is very small, there are lots of foodresources available to the fish but there are few fish available to reproduce,and so the population can only grow slowly. When the stock is large, thereare many fish but they are competing for dwindling resources, which resultsin poor reproductive performance, and as a result the population again growsonly slowly. Somewhere in the middle, when fish are abundant, but foodresources remain plentiful, is the stock size that gives the fastest populationgrowth rate, and therefore the maximum sustainable catch (or "yield"). Thatconcept is the basis for MSY.[15] The HSS provides that a stock that has fallen below the soft limit should berebuilt to at least the target within a timeframe of between TMIN and 2*TMIN (where2*TMIN is TMIN doubled), with an acceptable probability. TMIN is the theoretical timethe stock would take to rebuild to the target in the absence of fishing. TMIN is estimatedscientifically, taking account of the biological characteristics of the stock includinggrowth, natural mortality rate, and reproduction. TMIN will therefore vary dependingon the species and stock being considered.[16] Dr Dunn explained that an "acceptable probability" of a rebuild having beenachieved is described as 70 per cent, and that the reason for requiring a probabilitylevel greater than 50 per cent is that a stock that has been severely depleted is likelyto have a distorted age structure (over-reliance on juvenile fish, with relatively fewlarge, highly fecund fish).The setting of a TAC for East Coast tarakihi[17] The target BMSY for the East Coast tarakihi is set at 40 per cent SB0 (the target).This is consistent with a low productivity stock that shows characteristics of longevitygreater than about 25 years, maturation at ages greater than four years, and relativelyslow growth rates – this is broadly consistent with the known biology of tarakihi. Thetarget was accepted and reported by the FNZ Working Group,10 although it is describedas an "interim target". In making his 2019 decision, the Minister concluded that atarget level of 40 per cent SB0 was appropriate, notwithstanding the industry's viewthat there is a need to have a stock specific standard, which it would set at 35 per centSB0.[18] The soft limit for East Coast tarakihi is 20 per cent SB0; the hard limit is 10 percent SB0.[19] For East Coast tarakihi TMIN is estimated to be five years, and therefore 2*TMINis 10 years.The Fisheries Act 1996[20] Before turning to the details of the Minister's decision, and Forest & Bird'sclaims, it is useful to set out the relevant provisions of the Act.10 The FNZ Working Group includes scientific and fisheries expert reviewers, and industryrepresentatives.[21] Section 8 provides that the Act's purpose is to "provide for the utilisation offisheries resources while ensuring sustainability", and:(2) In this Act,—ensuring sustainability means—(a) maintaining the potential of fisheries resources to meet thereasonably foreseeable needs of future generations; and(b) avoiding, remedying, or mitigating any adverse effects offishing on the aquatic environmentutilisation means conserving, using, enhancing, and developingfisheries resources to enable people to provide for their social,economic, and cultural well-being.[22] Section 10 comprises information principles that must be taken into accountby all persons exercising or performing functions, duties, or powers under the Act, inrelation to the utilisation of fisheries resources or ensuring sustainability:(a) decisions should be based on the best available information:(b) decision makers should consider any uncertainty in theinformation available in any case:(c) decision makers should be cautious when information isuncertain, unreliable, or inadequate:(d) the absence of, or any uncertainty in, any information shouldnot be used as a reason for postponing or failing to take anymeasure to achieve the purpose of this Act.[23] Section 11 enables the Minister to set or vary sustainability measures (the TACand TACC are sustainability measures):11 Sustainability measures(1) The Minister may, from time to time, set or vary any sustainabilitymeasure for 1 or more stocks or areas, after taking into account—(a) any effects of fishing on any stock and the aquaticenvironment; and(b) any existing controls under this Act that apply to the stock orarea concerned; and(c) the natural variability of the stock concerned.(2) Before setting or varying any sustainability measure undersubsection (1), the Minister shall have regard to any provisions of—(a) any regional policy statement, regional plan, or proposedregional plan under the Resource Management Act 1991; and(b) any management strategy or management plan under theConservation Act 1987; and(c) sections 7 and 8 of the Hauraki Gulf Marine Park Act 2000(for the Hauraki Gulf as defined in that Act); and(ca) regulations made under the Exclusive Economic Zone andContinental Shelf (Environmental Effects) Act 2012; and(d) a planning document lodged with the Minister of Fisheries bya customary marine title group under section 91 of the Marineand Coastal Area (Takutai Moana) Act 2011—that apply to the coastal marine area and are considered by theMinister to be relevant.(2A) Before setting or varying any sustainability measure under this Part ormaking any decision or recommendation under this Act to regulate orcontrol fishing, the Minister must take into account—(a) any conservation services or fisheries services; and(b) any relevant fisheries plan approved under this Part; and(c) any decisions not to require conservation services or fisheriesservices.(3) Without limiting the generality of subsection (1), sustainabilitymeasures may relate to—(a) the catch limit (including a commercial catch limit) for anystock or, in the case of a quota management stock that issubject to section 13 or section 14, any total allowable catchfor that stock:(b) the size, sex, or biological state of any fish, aquatic life, orseaweed of any stock that may be taken:(c) the areas from which any fish, aquatic life, or seaweed of anystock may be taken:(d) the fishing methods by which any fish, aquatic life, orseaweed of any stock may be taken or that may be used in anyarea:(e) the fishing season for any stock, area, fishing method, orfishing vessels.(4) The Minister may,—(a) by notice in the Gazette, set or vary the catch limit (includingthe commercial catch limit) for any stock not within the quotamanagement system:(b) implement any sustainability measure or the variation of anysustainability measure, as set or varied under subsection(1),—(i) by notice in the Gazette; or(ii) by recommending the making of regulations undersection 298.(5) Without limiting subsection (4)(a), when setting or varying a catchlimit (including a commercial catch limit) for any stock not within thequota management system, the Minister shall have regard to thematters referred to in section 13(2) or section 21(1) or both thosesections, as the case may require.[24] Section 13 is the operative provision for setting the TAC. It is common groundthat in the case of tarakihi, the current level of the stock is below that which canproduce MSY and therefore s 13(2)(b) applies:13 Total allowable catch(1) Subject to this section, the Minister shall, by notice in the Gazette, setin respect of the quota management area relating to each quotamanagement stock a total allowable catch for that stock, and that totalallowable catch shall continue to apply in each fishing year for thatstock unless varied under this section, or until an alteration of thequota management area for that stock takes effect in accordance withsections 25 and 26.(2) The Minister shall set a total allowable catch that—(a) maintains the stock at or above a level that can produce themaximum sustainable yield, having regard to theinterdependence of stocks; or(b) enables the level of any stock whose current level is belowthat which can produce the maximum sustainable yield to bealtered—(i) in a way and at a rate that will result in the stock beingrestored to or above a level that can produce themaximum sustainable yield, having regard to theinterdependence of stocks; and(ii) within a period appropriate to the stock, having regardto the biological characteristics of the stock and anyenvironmental conditions affecting the stock; or(c) enables the level of any stock whose current level is abovethat which can produce the maximum sustainable yield to bealtered in a way and at a rate that will result in the stockmoving towards or above a level that can produce themaximum sustainable yield, having regard to theinterdependence of stocks.(2A) For the purposes of setting a total allowable catch under this section,if the Minister considers that the current level of the stock or the levelof the stock that can produce the maximum sustainable yield is notable to be estimated reliably using the best available information, theMinister must—(a) not use the absence of, or any uncertainty in, that informationas a reason for postponing or failing to set a total allowablecatch for the stock; and(b) have regard to the interdependence of stocks, the biologicalcharacteristics of the stock, and any environmental conditionsaffecting the stock; and(c) set a total allowable catch—(i) using the best available information; and(ii) that is not inconsistent with the objective ofmaintaining the stock at or above, or moving the stocktowards or above, a level that can produce themaximum sustainable yield.(3) In considering the way in which and rate at which a stock is movedtowards or above a level that can produce maximum sustainable yieldunder subsection (2)(b) or (c), or (2A) (if applicable), the Ministershall have regard to such social, cultural, and economic factors as heor she considers relevant.(4) The Minister may from time to time, by notice in the Gazette, varyany total allowable catch set for any quota management stock underthis section by increasing or reducing the total allowable catch. Whenconsidering any variation, the Minister is to have regard to the mattersspecified in subsections (2), (2A) (if applicable), and (3).(5) Without limiting subsection (1) or subsection (4), the Minister mayset or vary any total allowable catch at, or to, zero.(6) Except as provided in subsection (7), every setting or variation of atotal allowable catch shall have effect on and from the first day of thenext fishing year for the stock concerned.(7) After considering information about the abundance during the currentfishing year of any stock listed in Schedule 2, and after having regardto the matters specified in subsections (2), (2A) (if applicable), and(3), the Minister may, by notice in the Gazette, increase the totalallowable catch for the stock with effect from such date in the fishingyear in which the notice is published as may be stated in the notice.(8) If a total allowable catch for any stock has been increased during anyfishing year under subsection (7), the total allowable catch for thatstock shall, at the close of that fishing year, revert to the totalallowable catch that applied to that stock at the beginning of thatfishing year; but this subsection does not prevent a variation undersubsection (4) of the total allowable catch that applied at the beginningof that fishing year.(9) The Governor-General may from time to time, by Order in Council,omit the name of any stock from Schedule 2 or add to that schedulethe name of any stock whose abundance is highly variable from yearto year.(10) Subsection (1) does not require the Minister to set an initial totalallowable catch for any quota management area and stock unless theMinister also proposes to set or vary a total allowable commercialcatch for that area and stock under section 20.[25] The TACC is set in accordance with ss 20 and 21.20 Setting and variation of total allowable commercial catch(1) Subject to this section, the Minister shall, by notice in the Gazette, setin respect of the quota management area relating to each quotamanagement stock a total allowable commercial catch for that stock,and that total allowable commercial catch shall continue to apply ineach fishing year for that stock unless varied under this section, oruntil an alteration of the quota management area for that stock takeseffect in accordance with sections 25 and 26.(2) The Minister may from time to time, by notice in the Gazette, varyany total allowable commercial catch set for any quota managementstock by increasing or reducing that total allowable commercial catch.(3) Without limiting the generality of subsections (1) and (2), the Ministermay set or vary a total allowable commercial catch at, or to, zero.(4) Every total allowable commercial catch set or varied under thissection shall have effect on and from the first day of the next fishingyear for the quota management stock concerned.(5) A total allowable commercial catch for any quota management stockshall not—(a) be set unless the total allowable catch for that stock has beenset under section 13 or section 14; or(b) be greater than the total allowable catch set for that stock.21 Matters to be taken into account in setting or varying any totalallowable commercial catch(1) In setting or varying any total allowable commercial catch for any quotamanagement stock, the Minister shall have regard to the total allowable catchfor that stock and shall allow for—(a) the following non-commercial fishing interests in that stock,namely—(i) Maori customary non-commercial fishing interests;and(ii) recreational interests; and(b) all other mortality to that stock caused by fishing.(2) Before setting or varying a total allowable commercial catch for anyquota management stock, the Minister shall consult such persons andorganisations as the Minister considers are representative of thoseclasses of persons having an interest in this section, including Maori,environmental, commercial, and recreational interests.(3) After setting or varying any total allowable commercial catch under section20, the Minister shall, as soon as practicable, give to the parties consultedunder subsection (2) reasons in writing for his or her decision.(4) When allowing for Maori customary non-commercial interests undersubsection (1), the Minister must take into account—(a) any mataitai reserve in the relevant quota management areathat is declared by the Minister by notice in the Gazette underregulations made for the purpose under section 186:(b) any area closure or any fishing method restriction orprohibition in the relevant quota management area that isimposed by the Minister by notice in the Gazette made undersection 186A.(5) When allowing for recreational interests under subsection (1), theMinister shall take into account any regulations that prohibit or restrictfishing in any area for which regulations have been made following arecommendation made by the Minister under section 311.The Minister's decisions[26] Given the timing of the stock assessments, and the nature of Forest & Bird'sclaims, it is necessary to understand the decisions in both 2018 and 2019 (althoughonly the decision in 2019 is under review).The Minister's 2018 decision[27] The first stock assessment of East Coast tarakihi took place in November 2017,to inform TAC changes to take effect from 1 October 2018. The 2017 stock assessmentestimated the stock size in 2015-16, being the most recent year for which completedata was available, at 17 per cent SB0. There was an 89 per cent probability that thestock was below the soft limit.[28] An updated stock assessment was completed in April 2018, taking into accountone extra year of catch, which did not substantially change the results of the 2017assessment.[29] Therefore, given the East Coast tarakihi stock was below the soft limit, theHSS specified setting of the TAC at a level that would rebuild the stock to the targetwithin 5–10 years.Advice and submissions to the Minister[30] In July 2018 FNZ released a discussion paper and consulted on three options,and the fishing industry developed and provided to the Minister a draft ManagementStrategy for tarakihi fish stocks.11[31] In August 2018, following consultation, FNZ provided its advice (titled"Review of Sustainability Measures for the October 2018/19 Fishing Year") to theMinister, which included three options:(a) Option 1: Reducing TAC by 55 per cent, which was projected to requirea period of 10 years to rebuild to the target.(b) Option 2: reducing TAC by 35 per cent, which was projected to requirea period of 20 years to rebuild to the target.11 This was the initial version of what in 2019 became the Industry Rebuild Plan, discussed below at[38].(c) Option 3: reducing TAC by 20 per cent. The period required to rebuildthe stock under this option was not determined.The decision[32] On 19 September 2018 the Minister released his decision on sustainabilitymeasures for 2019 (the 2018 Decision). The Minister determined that the target(40 per cent SB0), with a 50 per cent probability of achievement, was the appropriatetarget, and the appropriate period of rebuild was 10 years. The Minister decided toreduce the TAC for each of TAR 1, TAR 2, TAR 3 and TAR 7, which resulted in acombined TAC reduction from 6,702 to 5,561 tonnes. He reduced the TACC by20 per cent.[33] The Minister noted that 50 per cent was "not a particularly high probability ofrebuild", but that to rebuild with more certainty would require even greater reductionsin the TAC. He considered that a probability of rebuild of 50 per cent was reasonable"given the status of the stock, the size of rebuild required, and the socio-economicimpact associated with achieving a rebuild with greater certainty."[34] The Minister decided a phased approach to implementation of the reductionsin catch was required:In the first year, from 1 October 2018, I have decided to reduce the commercialcatch by 20%. This is consistent with the proposal put forward in submissionsby industry. A reduction in catch of 20% will begin the process of rebuildingthe stock. I acknowledge that it will not rebuild the stock at the rate I wantwithout significant further measures. However, it will give industry a shortperiod to plan and adjust their operations to the change in catch that will beneeded overall.[35] The Minister's 2018 Decision also included acknowledgement of industryproposals that the change in catch could be implemented by way of voluntarymeasures:I would like industry to build on that package of measures, and thecross-industry agreement around them, to consider new and innovative waysto help this fishery rebuild. I anticipate this package could includedevelopment of new gear technology, monitoring and reporting, and differentways of fishing to improve selectivity amongst other things.[36] The Minister asked for a report from industry on progress and a draft planbefore the end of the year, with a final plan to be presented to him by no later than themiddle of 2019, noting that the measures in the plan would be considered alongsideany proposed catch reduction as part of the 1 October 2019 sustainability roundprocess:The size of the reduction in commercial catch needed on 1 October 2019 willbe dependent on the effectiveness of the suite of measures industry candevelop as part of this plan.The Minister's 2019 decision[37] An updated stock assessment completed in April 2019 estimated the stock tobe at 15.9 per cent SB0. The probability of the stock being below the soft limit hadincreased to 96 per cent.Advice and submissions to the Minister[38] In May 2019 Fisheries Inshore, Te Ohu and Southern Inshore FisheriesManagement Limited (Southern Inshore) provided to FNZ the Eastern TarakihiManagement Strategy and Rebuild Plan 2019 (the Industry Rebuild Plan). This was afurther development of the draft Management Strategy provided to the Minister inJuly 2018. It was the industry's proposal about how tarakihi stocks could be rebuiltand maintained. A key aspect of the industry proposal was to shelve 20 per cent of thequota instead of reducing the TACC. Shelving quota is when commercial fishers whoown quota voluntarily set aside a proportion of this for a particular species for aparticular time or fishing season. The proposal did not specify a rebuild time periodto reach the target.[39] In June 2019 FNZ released a discussion paper for consultation, whichcontained three options:(a) Option 1: TACC reduction of 31 per cent (shared unevenly across EastCoast tarakihi), with a 50 per cent probability of achieving the targetwithin 12 years.(b) Option 2: TACC reduction of 35 per cent, with a 50 per cent probabilityof achieving the target within 11 years.(c) Option 3: implementation of the Industry Rebuild Plan (with no TACor TACC reductions), with the aim of achieving a lesser target, of35 per cent SB0, within 27 years.[40] On 26 July 2019 Te Ohu, Fisheries Inshore, and Southern Inshore made a jointsubmission on these options. Te Ohu also made its own submission on the same date,as did Forest & Bird.[41] Forest & Bird's submission advocated that the Minister reject all of options 1,2 and 3, primarily due to their inconsistencies with the HSS guidance. Forest & Birdinstead recommended reducing the TACC by 40 per cent to rebuild within 10 years,with a probability of success of 70 per cent.[42] On 30 August 2019, FNZ provided its final advice paper, titled "October 2019Sustainability Round Decisions" (Advice Paper), to the Minister on the sustainabilityand related measures for stock for the 1 October 2019 fishing year. This included thethree options that were in the June 2019 discussion paper,12 as well as a fourth option,included as a result of consultation:(a) Option 1: TACC reduction of 31 per cent shared unevenly across EastCoast tarakihi, with a 50 per cent probability of achieving the targetwithin 12 years.(b) Option 2: TACC reduction of 35 per cent, with a 50 per cent probabilityof achieving the target within 11 years.12 See above at [39].(c) Option 3: implementation of the Industry Rebuild Plan (with no TACor TACC reductions), with the aim of achieving a lesser target, of35 per cent SB0, within 20 years.13 No probability was determined.(d) Option 4: TACC reduction of 10 per cent, combined with the IndustryRebuild Plan, with the aim of achieving the target within 20 years.There was some uncertainty about the rebuild period, and FNZ notedthat modelling for the TACC reduction alone (without the IndustryRebuild Plan) showed a 50 per cent probability that the target would beachieved in 25 years, and that it would take more than 30 years to reachthe target with 70 per cent probability.[43] FNZ advised the Minister that it preferred either option 2 or option 4,depending on the priority to "rebuild stock as quickly as possible, in a timeframe thatmost closely corresponds to the Harvest Strategy Standard", or "minimise thesocio-economic impacts on fishers, their families and the regional communities".The decision[44] On 27 September 2019, the Minister released his decision on sustainabilitymeasures for 2019 (the 2019 Decision). The Minister substantially adopted option 4:he decided to reduce the TAC to 5,205 tonnes, reduce the TACC by a further10 per cent, and implement the Industry Rebuild Plan. In addition, he requiredelectronic monitoring (cameras) on vessels fishing within TAR 2 and TAR 3 areas.[45] The Minister also noted that further work would be required before a different,species specific, management target for tarakihi could be set and he thereforeconfirmed that the target (of 40 per cent SB0), as recommended by the HSS, wasappropriate.[46] The Minister's 2019 Decision said:13 The industry had committed to a rebuild period of 20 years, but there was uncertainty about thatperiod, and FNZ noted that in the absence of any additional management actions the rebuild periodwould be 27 years.The Industry Rebuild Plan commits to a range of management actionsincluding, catch splitting arrangements, selectivity and gear trials, move-onrules, voluntary closed areas, and enhanced research that are intended to assistin the rebuild of this fishery. The Plan also commits to a maximum rebuildtimeframe of 20 years.There is however, uncertainty as to the extent to which the measures outlinedin the Industry Rebuild Plan will be successful in delivering a 20 year rebuild.To provide me with a greater level of certainty this will be achieved, I havedecided to combine the Industry Rebuild Plan with a 10% reduction tocommercial catch.In reviewing the Industry Rebuild Plan I have also sought a higher degree ofconfidence and assurance that the industry will adhere to the Plan. As a result,I have asked industry to strengthen monitoring and verification of catchthrough the use of on-board cameras in TAR 2 and TAR 3. In particular, Iwant added assurances around catch reporting, including the reporting ofjuvenile, sub-minimum legal size fish.If industry fails to deliver on the commitments outlined in the Industry RebuildPlan, I will look to introduce further catch reductions in October next year. Ihave instructed Fisheries New Zealand to regularly and closely monitorperformance against the Industry Rebuild Plan and report anynon-performance to me.While my decisions last year will have begun the process of rebuilding thestock, I indicated at that time that those actions were unlikely to rebuild thestock at the rate I wanted. Consequently, I consider it necessary to take furtheraction this year to provide confidence that the stock will rebuild in a way andat a rate that I consider appropriate. My decision reflects my understandingof the economic impacts on fishers, their families and the regionalcommunities where they operate, balanced against my responsibility to ensurethe sustainability of this fishery.The next stock assessment of East Coast tarakihi is scheduled to take place inearly 2021 and will provide an update of abundance for the stock. Thisinformation will be used to assess the performance of the Industry RebuildPlan and inform whether further management action is needed to protect thesustainability of the stock. However, as previously indicated, I will nothesitate to act sooner should the industry commitments that impact mydecision not be met.[47] The combined effect of the 2018 and 2019 Decisions is a reduction in TAC forEast Coast tarakihi of 22.3 per cent. Forest & Bird points out that this scenario wasnot modelled by FNZ. Scenarios that modelled a 20 per cent reduction projected thatit would take 19 years to reach the target (of 40 per cent SB0) with a 50 per centprobability. Dr Dunn estimates that the time for the stock to rebuild to the target witha 70 per cent probability is around 24 years.Forest & Bird's causes of action[48] Forest & Bird's statement of claim contains six causes of action, all relating tothe 2019 Decision.[49] The first cause of action alleges the Minister erred in law under s 13(2)(b)(ii)of the Act, because he did not vary the TAC to enable the level of East Coast tarakihito be altered within a period appropriate to the stock.[50] The second cause of action alleges the Minister made a further error of law, inthat he did not vary the TAC in a way that will, in terms of probability of achievement,enable the level of East Coast tarakihi to be altered within a period appropriate to thestock. It alleges there is, at most, a 50 per cent probability of achieving the targetwithin the time period; and this probability is not consistent with a mandatoryrequirement to set a TAC that will enable the target to be achieved within a reasonabletime.[51] The third cause of action alleges the Minister failed to have regard to a relevantconsideration, namely the HSS, which specifies 70 per cent as the minimum standardfor the acceptable probability of rebuild for a stock such as the East Coast tarakihi.[52] The fourth cause of action alleges the Minister had regard to an irrelevantconsideration, namely the Industry Rebuild Plan.[53] The fifth cause of action alleges the Minister's decision in 2019 wasunreasonable – given his decision in 2018 that the appropriate period for rebuildingthe stock was 10 years, it was unreasonable to adopt measures in 2019 could achieve,at best, a 20 year rebuild period.[54] The sixth cause of action alleges that the 2019 TACC decision wasconsequently affected by the material errors made in setting the TAC.[55] I turn now to consider each cause of action in turn.First cause of action: error of law – period appropriate to the stock (s 13(2)(b)(ii))SubmissionsForest & Bird[56] The first cause of action alleges the Minister erred in law under s 13(2)(b)(ii)of the Act, because he did not vary the TAC to enable the level of East Coast tarakihito be altered within a period appropriate to the stock.[57] Section 13(2)(b) required the Minister to set a TAC that would enable the levelof East Coast tarakihi to be altered:(a) in a way and at a rate that would result in the stock being restored to orabove a level that can produce MSY, having regard to theinterdependence of stocks (as required by s 13(2)(b)(i)); and(b) within a period appropriate to the stock, having regard to the biologicalcharacteristics of the stock and any environmental conditions affectingthe stock (as required by s 13(2)(b)(ii)).[58] Section 13(3) required the Minister to have regard to relevant social, culturaland economic factors when considering the way in which and rate at which a stock ismoved towards a level that can produce MSY under s 13(2)(b).[59] Forest & Bird asserts that the Minister erroneously conflated s 13(2)(b)(i) and(ii) and, in doing so, applied s 13(3) considerations (social cultural and economicfactors) in determining the "period appropriate" under s 13(2)(b)(ii).[60] Forest & Bird alleges the Minister made an error of law by approaching hisdecision under s 13(2) of the Act as a balance between sustainability andsocio-economic considerations when:(a) under s 13(2)(b)(ii), sustainability is a bottom line that does not involvebalancing competing considerations; and(b) socio-economic considerations are not relevant to the periodappropriate to the stock determined under s 13(2)(b)(ii).[61] Forest & Bird says the words "way in which and rate at which" in s 13(3)reproduce the words of s 13(2)(b)(i) ("in a way and at a rate"), and are intended toapply only to s 13(2)(b)(i). It says that s 13(3) does not enable the Minister to extendthe period appropriate to the stock in reliance on social, cultural and economic factors.[62] Forest & Bird says the Minister's decision-making process did not involvemaking an assessment of the "period appropriate to the stock"; in that respect, hedeparted from the requirements of the legislative framework.[63] Forest & Bird says that the requirements of both s 13(2)(b)(i) and (b)(ii) mustbe met.The Minister[64] The Minister agrees that the "period appropriate to the stock" is a timeframesuitable to rebuild a particular fishery, having regard to the biological characteristicsof the stock and any environmental conditions. The Minister agrees the requirementsof both s 13(2)(b)(i) and (ii) must be met. However, he says that an assessment of thebiological characteristics and environmental conditions may determine a range ofappropriate "timeframes" and, within that range, he may adopt a timeframe for rebuildthat gives more or less weight to social, cultural and economic considerations. TheMinister is not obliged to minimise the period for rebuild under s 13(2)(b)(ii), providedthe period is ultimately appropriate from a sustainability perspective.[65] The Minister says that Forest & Bird has produced no evidence to demonstratethat the rebuild period chosen was outside a range that would be appropriate to thisstock, relying on the dictionary meaning of "appropriate" as "suitable" or "speciallysuitable".[66] The Minister also emphasises that the 2018 and 2019 Decisions, taken together,are projected to move the East Coast tarakihi stock to the target level within 25 yearswith a 50 per cent probability.Fisheries Inshore[67] Fisheries Inshore, on the other hand, asserts that social, cultural and economicconsiderations are relevant in setting the period appropriate to the stock. It says thatthe considerations in s 13(2) are inherently composite in nature – the way and rate ofa rebuild and the appropriate period over which it should occur will often be part andparcel of the same essential balancing exercise.[68] Fisheries Inshore's submissions in support of this view dealt at some lengthwith New Zealand's international law obligations, the history of the legislation, andprevious decisions in relation to New Zealand fisheries.Te Ohu[69] Te Ohu supported the submissions of the Minister and Fisheries Inshore on thiscause of action.Analysis[70] I approach this cause of action in two steps. First, what does the statute require;second, how did the Minister go about making his decision?What does the statute require?[71] Section 13 is not drafted as clearly as it might be. Although the reference to a"period appropriate to the stock" in subs (2)(b)(ii) occurs after the reference to "way"and "rate" in subs (2)(b)(i), logically the period appropriate must be determined first;because "way" must mean measures designed to implement the target, and "rate" thespeed at which the target is achieved within the designated "appropriate" period.[72] Further, while subs (3) refers to "subsection (2)(b) or (c)", the requirement thatthe Minister have regard to such social, cultural and economic factors as he or sheconsiders relevant is specifically linked to the phrase "in considering the way in whichand rate at which" a stock is moved towards MSY. That echoes the words of subs(2)(b)(i). As a matter of construction, logically subs (3) applies to (2)(b)(i) and not to(2)(b)(ii); it does not enable the Minister to postpone the stock's return to sustainabilityin reliance on social, cultural or economic considerations.[73] That interpretation is consistent with the purpose of the Act to provide for theutilisation of fisheries resources while ensuring sustainability.14 As the Supreme Courtsaid in New Zealand Recreational Fishing Council Inc v Sanford Ltd (Supreme CourtKahawai case):15[39] Section 8(1) appears in Part 2 of the Act headed "Purpose andprinciples". It expresses a single statutory purpose by reference to the twocompeting social policies reflected in the Act. Those competing policies are"utilisation of fisheries" and "ensuring sustainability". The meaning of eachterm in the Act is defined in s 8(2). The statutory purpose is that both policiesare to be accommodated as far as is practicable in the administration offisheries under the quota management system. But recognising the inherentunlikelihood of those making key regulatory decisions under the Act beingable to accommodate both policies in full, s 8(1) requires that in the attributionof due weight to each policy that given to utilisation must not be such as tojeopardise sustainability. Fisheries are to be utilised, but sustainability is tobe ensured.[74] As to international obligations, s 5 provides that the Act is to be interpreted,and all those exercising or performing functions, duties, or powers imposed by orunder it shall act, in a manner consistent with New Zealand's international obligationsrelating to fishing. Those obligations include arts 61 and 62 of the United NationsConvention on the Law of the Sea (UNCLOS).16 Article 61 provides:Article 61Conservation of the living resources1. The coastal State shall determine the allowable catch of the livingresources in its exclusive economic zone.2. The coastal State, taking into account the best scientific evidenceavailable to it, shall ensure through proper conservation and managementmeasures that the maintenance of the living resources in the exclusive14 Fisheries Act, s 8.15 New Zealand Recreational Fishing Council Inc v Sanford Ltd [2009] NZSC 54, [2009] 3 NZLR438 [Supreme Court Kahawai case].16 United Nations Convention on the Law of the Sea 1833 UNTS 3 (opened for signature10 December 1982, entered into force 16 November 1994).economic zone is not endangered by over-exploitation. As appropriate, thecoastal State and competent international organizations, whether subregional,regional or global, shall cooperate to this end.3. Such measures shall also be designed to maintain or restorepopulations of harvested species at levels which can produce the maximumsustainable yield, as qualified by relevant environmental and economicfactors, including the economic needs of coastal fishing communities and thespecial requirements of developing States, and taking into account fishingpatterns, the interdependence of stocks and any generally recommendedinternational minimum standards, whether subregional, regional or global.4. In taking such measures the coastal State shall take into considerationthe effects on species associated with or dependent upon harvested specieswith a view to maintaining or restoring populations of such associated ordependent species above levels at which their reproduction may becomeseriously threatened.5. Available scientific information, catch and fishing effort statistics, andother data relevant to the conservation of fish stocks shall be contributed andexchanged on a regular basis through competent international organizations,whether subregional, regional or global, where appropriate and withparticipation by all States concerned, including States whose nationals areallowed to fish in the exclusive economic zone.[75] Fisheries Inshore submits that "as qualified by relevant environmental andeconomic factors" in art 61(3) must qualify situations of both maintaining andrestoring populations of harvested species.[76] However, while the provisions of UNCLOS provide useful context, they donot assist in deciding the specific question at issue. The requirement in art 61(3) isexpressed generally. It does not specify at what point in the process of makingdecisions about sustainability measures (such as the TAC and TACC) the qualifiers of"relevant environmental and economic factors" should be taken into account. AsForest & Bird submits, Fisheries Inshore's interpretation of art 61(3) is not the way inwhich it has been implemented in the New Zealand legislation. Article 61(3) does notmean that maintenance and restoration of a fish population at MSY must always bequalified by economic factors. If that were so, maintenance at MSY under s 13(2)(a)would also be subject to economic factors.[77] Fisheries Inshore's submissions also drew on the legislative history of the Actto support its interpretation. It notes that the Bill as introduced in 1984 allowed forthe possibility of the fishery to be permanently below BMSY, providing a "net nationalbenefit" test was met. However, that test was removed by the time of an interim reportback on the Bill in December 1995.[78] Fisheries Inshore emphasised that s 13(2)(b)(ii) requires only that the Ministerset the TAC "having regard to" biological characteristics and any environmentalconditions affecting the stock. This contemplates that he may consider other mattersbeyond these scientific considerations. Biological characteristics and environmentalconditions are not decisive and therefore social, cultural and economic factors arepermissible considerations under s 13(2)(b)(ii). It cites Pacific Trawling Ltd vMinister of Fisheries in support of the proposition.17 There, Priestley J wasconsidering s 75(2)(b) of the Act, and said:[83] As a matter of construction, a s 75(7) variation of DV rates mustbe preceded by the Minister taking into account the s 75(2)(a) incentivecriterion. As for s 75(2)(b) matters, the Minister "may have regard" to thecriteria listed. As the Court of Appeal observed in Sanford Limited & Ors vNew Zealand Recreational Fishing Council Inc, adopting its earlier decisionof New Zealand Fishing Association v Ministry of Agriculture and Fisheries,the words "have regard to" did not equate with "give effect to". Where thereis a mandatory obligation to "have regard" to something the matter must beconsidered, but it does not necessarily determine or influence the decision.[79] The original text of subs (2)(b)(ii) was: "a period appropriate to the stock andits biological characteristics". "Environmental conditions" was originally part ofs 13(2)(b)(i). In 1996, the provision was amended to move "environmentalconditions" to s 13(2)(b)(ii), to clarify that environmental conditions qualify the periodof rebuild, not MSY. It was said that "transient environmental conditions should notbe used to modify the target stock level (i.e. the level that can produce MSY)."18[80] In discussing subs (2) and (3) Departmental officials said:19These subsections deal with different aspects of the TAC setting process.Subsection (2) specifies that the primary management goal for the Minister isto ensure fish stocks are maintained at or above, or moved towards, a levelthat can produce the MSY. Subsection (3) requires the Minister to considercertain factors (social, cultural, and economic) when determining the way andrate in which this goal is achieved. These factors can not therefore alter thegoal of managing a stock at or above the MSY level.17 Pacific Trawling Ltd v Minister of Fisheries HC Napier CIV-2007-441-1016, 29 August 2008(citations omitted).18 Fisheries (Remedial Issues) Amendment Bill, Departmental Report at [41].19 At [42].[81] I agree with Forest & Bird that the legislative history indicates that the factorsrelevant to determining the "period appropriate to the stock" are those contained ins 13(2)(b)(ii) (being the biological characteristics of the stock and any environmentalconditions affecting the stock), and the drafting change was not intended to makesocial, cultural and economic factors relevant considerations under s 13(2)(b)(ii).[82] As to case law, s 13(2)(b) of the 1996 Act has not been directly considered bythe Courts. Fisheries Inshore relies on several authorities relating to the Fisheries Act1983 (the 1983 Act) to support its submission that s 13(3) applies to all elements ofs 13(2), not just to s 13(2)(b)(i). The 1983 Act, as the Minister acknowledges, did notcontain an equivalent "period appropriate to the stock" provision.[83] Greenpeace v Minister of Fisheries (Orange Roughy case) concerned the TACprovision in the 1983 Act. The Court said:20In arriving at what is an appropriate time period, all factors must be taken intoaccount and these can reasonably include economic and socio-economicfactors; that each TAC fixed must be such as not to compromise the MSY orthe programme and period within which that objective is to be attained, butneed not necessarily promote the MSY in the sense of shortening thetimeframe within which it is to be achieved.[84] Fisheries Inshore also relied on New Zealand Fishing Industry Association(Inc) v Minister of Fisheries (Snapper case), which concerned the timeframe selectedby the Minister for rebuild of the snapper fishery and the Minister's obligations tohave regard to the social and economic impacts of his decision, under the 1983 Act.21Fisheries Inshore relied on the following discussion of the Court of Appeal about the1983 Act:22In our judgment that definition both alone and informed by the relevantarticles of the United Nations Convention on the Law of the Sea (UNCLOS)cast on the Minister a prima facie duty to move the fishery towards MSY, ifnot already there, by such means and over such period of time as the Ministerdirected. That prima facie obligation was subject to the so called qualifiersi.e. those factors introduced by the words "as qualified by". Those qualifierswere matters which the Minister was required to address when considering20 Greenpeace v Minister of Fisheries HC Wellington CP 492/93, 27 November 1995 at 29 [OrangeRoughy case].21 New Zealand Fishing Industry Association (Inc) v Minister of Fisheries CA82/97, 22 July 1997[Snapper case].22 At 12-13.how to implement his prima facie duty and, if the qualifiers were cogentenough, whether the prima facie duty was for the moment overtaken by oneor more of those factors. Thus the qualifiers were relevant to whether, and ifso, by what means and over what time the prima facie duty should beimplemented.[85] The Court then went on to consider s 13 of the 1996 Act:23It is similarly made clear that what used to be called the qualifiers (nowexpressed as social, cultural and economic factors as the Minister considersrelevant) are matters to which the Minister must have regard when heconsiders the way in which and the rate at which the stock is moved towardsor above MSY. In short, the Minister now has a clear obligation to move thestock towards MSY and when deciding upon the time frame and the ways toachieve that statutory objective the Minister must consider all relevant social,cultural and economic factors.(Fisheries Inshore's emphasis)[86] However, the issues the Court of Appeal was directly concerned with in theSnapper case involved the 1983 Act. It was also the 1983 Act that was in issue in theOrange Roughy case. Although the 1996 Act had been enacted by the time the Courtheard the Snapper case, to the extent the Court refers to the 1996 Act, its commentsare plainly obiter.[87] In addition, the portion of the Court of Appeal's judgment in the Snapper caseemphasised by Fisheries Inshore is a summary or paraphrasing of s 13(2)(b)(i) only.When the passages are read in their entirety, they support a different conclusion. Thelast sentence quoted at [85] above is framed in very general terms. The precedingsentence says, "the Minister must have regard when he considers the way in which andthe rate at which the stock is moved towards or above MSY" (emphasis added). Thenext sentence then begins "In short", which indicates it is a summary of the abovepoint; it then continues "the time frame and the ways to achieve that statutoryobjective".[88] The Court does not refer to the "period appropriate to the stock" at any point.The Court does refer to "time frame" but, as Forest & Bird emphasised, that phrase isnot used in s 13 of the Act (or indeed in the 1983 Act) and the Court refers to "theways to achieve" the statutory objectives, rather than the specific language of23 At 14.s 13(2)(b)(i). The earlier sentence in the Court's judgment, which focused on "the wayin which and rate at which the stock is moved" is an accurate summary of whats 13(2)(b)(i) requires.[89] Accordingly, I conclude that the cases considering the s 13 predecessor in the1983 Act do not assist Fisheries Inshore's argument. Rather they tend to support Forest& Bird's interpretation of s 13(2)(b).[90] Fisheries Inshore also relied on the Court of Appeal and Supreme Courtdecisions in Sanford Ltd v New Zealand Recreational Fishing Council Inc (Court ofAppeal Kahawai case),24 and the Supreme Court Kahawai case,25 which were aboutthe 1996 Act, as applying s 13(3) to both limbs of s 13(2)(b). In the Kahawai case,the High Court considered the Minister's allocation decisions for kahawai in 2004 and2005.26 In the course of his judgment, Harrison J said:[49] While it may not have been articulated in this way, MFish's advice tothe Minister to apply an arbitrary 15% reduction was a measure designed toresult in kahawai being restored to or above a level that can produce themaximum sustainable yield: s 13(2)(b)(i). It was a cautious step, proposed inrecognition of the effect upon the stock of the higher than originally assessedlevel of recreational catch or use. In considering the way and rate at whichthis objective was carried out the Minister was bound to 'have regard to suchsocial, cultural and economic factors as he considers relevant': s 13(3). Itis significant that these factors do not constitute the criterion for setting thelevel of the TAC itself but only arise for discretionary consideration whendetermining the manner and speed of restoring the stock to the level ofmaximum sustainable yield.[50] Mr Galbraith's argument is that when advising the Minister on theTACs MFish was blinkered or blinded by its reliance on catch history data asthe primary criterion to the exclusion of people's 'social, economic andcultural wellbeing'. But the argument must fail once it is recognised that'social, economic and cultural wellbeing' is not the mandatory statutoryguideline for fixing a sustainability measure. The Minister was not bound tohave regard to the concept of wellbeing at all but to 'such social, cultural andeconomic factors' which he considered relevant, and then only in structuringthe stock's return to maximum sustainable yield, not in setting the level of theTAC itself. In practice, it would be difficult to prove a breach of this duty. Itwould be open to the Minister, for example, to conclude that no such factorswere relevant when considering a TAC for a particular stock.24 Sanford Ltd v New Zealand Recreational Fishing Council Inc [2008] NZCA 160 [Court of AppealKahawai case].25 Supreme Court Kahawai case, above n 15.26 New Zealand Recreational Fishing Council v Minister of Fisheries HC Auckland CIV-2005-404-4495, 21 March 2007 [High Court Kahawai case].(emphasis added)[91] Fisheries Inshore noted that the High Court decision was overturned in theCourt of Appeal, and the Court of Appeal's decision upheld in the Supreme Court.However, in the Supreme Court, the only ground pursued related to how the TACCwas set under s 21, not how the TAC was set under s 13.27 The Supreme Court said:28[44] While sustainability is the guiding criterion, the Minister has someflexibility under s 13 to consider aspirations of the fishing sectors forutilisation of the resource. In considering the way in which, and rate at which,a stock is moved towards or above a level producing a maximum sustainableyield, the Minister must have regard to "social, cultural and economic factorsas he or she considers relevant". This imports into the process for setting thetotal allowable catch a key aspect of the definition of "utilisation" in s 8(2).(emphasis added)[92] I conclude that the "period appropriate to the stock" in s 13(2)(b)(ii) of the Actis to be determined by the Minister based on technical advice concerning the stock'sbiological characteristics and environmental conditions. Perpetually maintaining astock below MSY (which would be permissible if s 13(2)(b)(ii) is qualified byeconomic considerations) is not a tenable interpretation. The specific words ofs 13(2)(b)(ii) are determinative – the Minister was required to alter the stock levelswithin a period appropriate to the stock, having regard to the biological characteristicsof the stock and any environmental conditions affecting the stock, without referenceto social, cultural and economic factors.[93] Social, cultural and economic factors come into play only after the Ministerhas decided on "the period appropriate to the stock", when he or she comes todetermine the way in which and the rate at which a stock is moved towards a level thatcan produce MSY.How did the Minister go about making his decision?[94] I turn now to consider the Minister's decision-making process and how heexpressed his reasoning.27 Supreme Court Kahawai case, above n 15, at [2].28 Supreme Court Kahawai case, above n 15 (footnotes omitted).[95] In making the 2019 Decision the Minister had before him the FNZ AdvicePaper. The Advice Paper referred to the consultation process undertaken for theEast Coast tarakihi stock. FNZ then set out for the Minister's consideration thefour options referred to at [42] above.[96] FNZ advised the Minister that all four options were open to him, and that allprovided for rebuild of the tarakihi fishery to ensure that the stock moves towardsBMSY. FNZ's preferred options were options 2 and 4.[97] The Advice Paper noted:Options 3 and 4 also step outside the guidelines in the Harvest StrategyStandard and deliver an initial rebuild rate that is between 4- 5*Tmin, insteadof 2*Tmin. There is uncertainty whether the measures outlined in the IndustryRebuild Plan will lead to an expedited rebuild timeframe within the 20 yearhorizon proposed. Science modelling has indicated that increasing the age offish caught by one year will accelerate the rebuild, but it is difficult to predictto what extent the measures proposed by industry will achieve this.It is not common for Fisheries New Zealand to propose options that are outsideof the Harvest Strategy Standard, but Options 3 and 4 have been included inrecognition of the social, cultural and economic factors. These factors arerelevant to your decision making, and are not taken into account by theHarvest Strategy Standard.[98] The sequence of the Minister's decision-making is not clearly set out in eitherthe Advice Paper or the Minister's 2019 Decision. In particular, the "periodappropriate to the stock" is not separately and specifically considered. Under theheading "State of the stock", the Advice Paper does refer to what the HSS says abouta rebuild plan, including in relation to Tmin:When a stock declines below the soft limit a formal, time-constrained,rebuilding plan is recommended. The Harvest Strategy Standard recommendsthat a rebuilding plan should aim to restore the stock to, at least, the targetlevel of biomass within a timeframe of between Tmin (minimum timeframe toachieve rebuild to target in the absence of fishing) and 2*Tmin (twice theminimum timeframe), with a 50% probability. Tmin for tarakihi has beendetermined to be 5 years for a target of 40% SB0, or 4 years for a target of 35%SB0. 35% SB0 is the species specific management target for tarakihi that hasbeen proposed by the industry.[99] The factors on the basis of which the "period appropriate to the stock" isassessed are considered under the heading "Way and rate":Biological characteristics of the stock and any relevant environmentalconditionsDue to the rapid growth of tarakihi in their first eight years, there is potentialto rebuild the stock in a shorter timeframe than other slower growing stocks.Projections suggest East Coast tarakihi stock has a 50% probability ofrebuilding to a target of 40% SB0 within five years in the absence of fishing.A 50% probability of reaching the target is considered acceptable, due to thenatural variation caused by fluctuations in recruitment and environmentalconditions.[100] There is nothing in the Advice Paper that suggests the four options proposedidentified a period "appropriate to the stock" as the starting point for the Minister'sdecision.[101] Neither the Advice Paper nor the Minister's 2019 Decision give an explanationof why the "period appropriate to the stock" was changed from 10 years in 2018 to20 years in 2019. The 2019 Decision does not acknowledge that a 20 or 25 yearrebuild period is a departure from the 10 year rebuild period the Minister hadpreviously decided on.[102] The Minister has filed an affidavit in this proceeding, in which he noted inrelation to his 2018 Decision that he "favoured a rebuild timeframe of ten years".[103] In discussing his 2019 Decision, the Minister said:[41] I was conscious that a TACC reduction of 35% was most aligned withthe ten year period of rebuild, which I preferred in the previous year,and guidance provided by the HSS.[42] Nonetheless, I had an obligation to balance the potentialsocio-economic impacts of my decisions against my responsibility toensure the sustainability of East Coast tarakihi. I was concerned thatthe recommended ten year rebuild may have particularly significantsocio-economic implications for this fishery.[104] The Minister did not directly address the issue of the period appropriate to thestock, in terms of s 13(2)(b)(ii), either in the 2019 Decision, or in his affidavit.[105] The Minister says, as noted above,29 that assessment of biologicalcharacteristics and the environmental conditions may result in a range of periods29 See above at [64]."appropriate to the stock" and he is then permitted to consider social, cultural andeconomic factors in deciding which of the appropriate periods to choose. Forest &Bird acknowledges that there may be a range of advice on what constitutes the periodappropriate to the stock, having regard to the relevant scientific considerations.[106] However, the period must still be "appropriate to the stock". All of the fouroptions put forward by FNZ would, as FNZ said to the Minister, provide for rebuildof the stock and for moving the stock towards the target. However, neither of thosethings is sufficient to meet the statutory test. Section 13 requires more than that thestock be moved towards the target over any timeframe – it requires the identificationof a period "appropriate to the stock", having regard to the biological characteristicsof the stock and any environmental conditions.[107] In similar vein, the Minister submitted that Forest & Bird has provided noevidence that the rebuild period chosen by the Minister was outside a range that wouldbe appropriate to the stock. In my view, that approach inverts the relevant question,which is how and on what information did the Minister go about determining theperiod appropriate to the stock.[108] Fisheries Inshore's submission was that there has been a 30 per cent reductionin the TAC since 2017, therefore the Minister cannot be said to be "postponingsustainability". Plainly staged reductions are possible, but as I have already noted,s 13(2) requires more of the Minister than simply moving in the right direction. Thatwould, as Forest & Bird puts it, allow for a constant shift of the goalposts despite nochange in the relevant scientific information since 2017. Section 13(2) requires thesetting of a "period appropriate to the stock".Conclusion[109] I find that the Minister did make an error of law, in that he did not make anassessment of the period of rebuild appropriate to the East Coast tarakihi, as requiredby s 13(2)(b)(ii) of the Act, before applying social, cultural and economic factors tothe determination of way and rate of rebuild.Second cause of action: error of law – probability of achievementSubmissionsForest & Bird[110] The second cause of action alleges the Minister made an error of law, in thathe did not set a TAC that will, in terms of probability of achievement, enable the levelof East Coast tarakihi to be altered within a period appropriate to the stock. Forest &Bird says that a probability of 50 per cent of achieving the target of within 25 years isinsufficient to meet the obligations of s 13(2)(b).30 Forest & Bird relied on Dr Dunn'sevidence, and submitted the language of s 13 required the Minister to adopt a TACwith a 60 per cent probability of achievement or higher (although at the hearing Forest& Bird acknowledged that 60% has no legislative basis and was used in an"illustrative" sense).[111] Forest & Bird's submission is that probability is inherent in the requirement toset a TAC that will result in the stock being restored. The higher the probability ofachievement, the longer the timeframe to achieve the target. Also, within the giventimeframe, the TAC reduction needed to achieve the target will be greater if a higherprobability is used.The Minister[112] The Minister in response says that he had to set a TAC that will "enable" orfacilitate the alteration of stock levels needed to meet the objectives in s 13(2)(b)(i)and (ii); whether the preferred rebuild period is, in fact, being achieved is a matter tobe kept under review. The Minister also points out that the use of the word "enables"in s 13 recognises that measures besides the TAC can affect the rebuild of a stock. TheMinister acknowledges the HSS guidance on probability, but says that does not meanhe must satisfy himself a given rebuild timeframe will be achieved to 70 per cent atthe outset.30 The Minister's Decision does not refer to the level of probability for either of options 3 or 4.However the options were based on FNZ modelling for a TACC reduction alone that showed a50 per cent probability that the target would be achieved in 25 years, and that it would take morethan 30 years to reach the target with 70 per cent probability. The probability of reaching the targetbased on the TACC reduction together with the Industry Rebuild Plan was not modelled.Fisheries Inshore[113] Fisheries Inshore argues that the degree of certainty (probability) is a matterfor the Minister. His or her obligation is simply to set a TAC that "enables" the desiredrebuild. Implicit in the submission is that a TAC which enables the moving of thestock level in the right direction will meet the Minister's obligation under s 13.Te Ohu[114] Te Ohu supported the submissions of the Minister and Fisheries Inshore on thiscause of action.Analysis[115] This cause of action gives rise to three questions:(a) Is the Minister required to identify a probability level at the time ofsetting a TAC?(b) Did the Minister identify a probability level in his 2019 Decision?(c) Does adopting an approach with a probability of achievement of 50 percent amount to an error of law, based on the requirements of s 13(2)(b)?Is the Minister required to identify a probability level at the time of setting a TAC?[116] Determining a probability figure is an integral part of the process of fixing aTAC in the context of a fish stock that is below the level which can produce MSY.This is reflected in the HSS Operational Guidelines which state:A rebuilding plan consists of the rebuild target, the expected timeframe forrebuilding and a minimum acceptable probability of achieving the rebuild,together with a set of management actions that will achieve the desiredrebuild.[117] The rebuild target, the period appropriate to the stock, and the probability ofachieving the target are all essential elements of the rebuild plan. The level ofprobability goes directly to achievement of the rebuild target within the appropriateperiod for the stock. Failing to determine the probability level, or accepting it at avery low level, undermines the integrity of the process and potentially renders therebuild target moot. The probability of the rebuild being achieved is not a subsidiaryquestion that can be dealt with at some later point during the course of the rebuild,although it is desirable, and may be necessary, that the progress of the rebuild bemonitored during the period of the rebuild. The probability level should be determinedat the time of setting the TAC.[118] Therefore, I conclude the Minister was required to identify a probability levelat the time of setting the TAC.Did the Minister identify a probability level in his 2019 Decision?[119] It is not entirely clear whether the Minister did in fact identify a probability inhis 2019 Decision; there was modelling by FNZ which underpinned the 10 per centTACC reduction in option 4, but no modelling of probability in relation to the IndustryRebuild Plan alone (option 3) or a 10 per cent TACC reduction coupled with theIndustry Rebuild Plan (option 4).[120] However, given the primary measure adopted by the Minister was the10 per cent TACC reduction, which FNZ had modelled and which had a 50 per centprobability of achievement of the target within 25 years, I find (by a fine margin) thata probability was adequately identified in the 2019 Decision.Does adopting an approach with a probability of achievement of 50 per cent amountto an error of law, based on the requirements of s 13(2)(b)?[121] The question then becomes: does s 13(2)(b) require the Minister to set aprobability higher than the 50 per cent probability on which his 2019 Decision wasmodelled?[122] Forest & Bird's submissions on this point focused on Dr Dunn's explanationof "verbal descriptions" used to explain probability figures regarding the status of astock in relation to a target, where he explained 40–60 per cent means "about as likelyas not", and above 60 per cent means "likely".31 Forest & Bird submits that a 50 percent probability means that rebuild within the appropriate period is "as likely as not",and that does not satisfy the requirement of s 13(2)(b) which uses mandatory anddirective language: the Minister "shall" set a TAC that enables the level of stock to bealtered in a way that "will" result in the stock being restored "to or above" a level thatcan produce MSY, within a period appropriate to the stock. As Forest & Birdemphasised, the obligation in s 13(2)(b) is not merely to improve a stock from a currentdepleted state, but to rebuild it to MSY in a period appropriate to tarakihi.[123] If the Minister were to adopt a rebuild target and appropriate period with aprobability of achievement of, say, 10 per cent, the requirements of s 13(2)(b) wouldplainly not be met. What is less clear is where the cut-off point is. The Minister knewat the time of his 2018 Decision that a 50 per cent probability did not accord with thebest available evidence as to what is necessary in terms of probability. As he candidlyacknowledged at the time of his 2018 Decision a 50 per cent probability was "notparticularly high".[124] The significance of the probability of the rebuild being completed to the targetlevel and within the appropriate period is expanded by the evidence of two of theexperts who gave affidavit evidence in the proceeding. Dr Mace said:30 When referring to the probability of rebuild, a 50% probability doesnot mean a 50% chance of rebuild versus a 50% chance of notrebuilding at all. Rather, the 50% probability level should be thoughtof as the median of a distribution around the target, rather like abell-curve (although usually a slightly different shape). In otherwords, there will be a 49% probability of being somewhat above thetarget and a 49% chance of being somewhat below. There will alsobe a 20% probability of being well above and a 20% chance of beingwell below.31 However, in the current case, even the bottom end of the probabilitydistribution with a median of 50% will result in an East Coast tarakihistock size that is well above the current level of 15.9% SB0.[125] Dr Dunn explained:63. For a stock that is being rebuilt to BMSY, achieving a 70% probabilityof being above the target means that there is a 7 out of 10 chance that31 Forest & Bird also relied on similar descriptions used in RJ Davidson Family Trust v MarlboroughDistrict Council [2016] NZEnvC 81.the stock size would be above the target, and in 3 out of 10 cases thestock size will be below the target. This is a higher certainty than a50% probability, which means that in half of the cases the stock sizewill be above the target and in half of the cases it will be below thetargets.[126] I am not able to conclude that in this case setting a target with a 50 per centprobability of it being achieved within the specified period was an error of law. Iconsider the criticisms of the probability in relation to the guidance in the HSS in moredetail below, under the third cause of action.Conclusion[127] On this cause of action, I conclude that:(a) probability is an inherent component of the requirement to set a TACthat will result in the stock being restored to a level that can produceMSY, and not simply something to be assessed at a later point in therebuild process, and therefore the Minister was required to identify aprobability level at the time of setting the TAC;(b) when read in conjunction with the Advice Paper, the Minister's 2019Decision adopted an approach with approximately a 50 per centprobability of achievement; and(c) it was not an error of law to adopt a TACC that had modelled a 50 percent probability of achieving the target.Third cause of action: relevant consideration – HSS guidance on acceptableprobability[128] Both the second and third causes of action relate to the level of probability forachieving the rebuild of the stock. While the second cause of action focused onwhether the Minister erred in law by adopting an approach with a likely probability of50 per cent, the third cause of action focuses on whether the HSS guidance onprobability was a relevant consideration the Minister failed to consider.SubmissionsForest & Bird[129] The third cause of action alleges the Minister failed to have regard to a relevantconsideration, namely the HSS, which specifies 70 per cent as the minimum standardfor the acceptable probability of rebuild for a stock such as East Coast tarakihi.[130] For completeness, I note Forest & Bird also initially alleged under this causeof action that the Minister made a material mistake of fact with respect to the HSS thatsocial, cultural and economic factors are not taken into account by the HSS. This wasnot pursued at the hearing before me.[131] Forest & Bird says that even if the Minister was entitled to set a TAC thatwould rebuild to MSY with a 50 per cent probability, in making that decision theMinister ought to have had regard to the best practice guidance as to the acceptableprobability of rebuild for depleted stocks and why the higher probability is warranted.Forest & Bird noted the HSS level is the best practice, and having regard to it isconsistent with the obligation to use best available information. Also, the Ministerrelied on the HSS to support other aspects of the 2019 Decision; in doing so he wasrequired to rely on it accurately by having regard to its guidance on probability.The Minister[132] In response, the Minister submitted that the HSS statement on probability isnot a mandatory relevant consideration, being one which a statute expressly orimpliedly identifies as being required to be taken into account.32 The Minister said hisdecision did not relate to whether the stock had in fact been fully rebuilt. The Ministeralso said that he was aware that the TAC reductions were estimated to reach the targetwithin 25 years with a 50 per cent probability, and he was fully aware that this was adeparture from the HSS.32 Petrocorp Exploration Ltd v Minister of Energy [1991] 1 NZLR 1 (CA) at 33; CREEDNZ Inc vGovernor-General [1981] 1 NZLR 172 (CA) at 183.[133] The Minister argued that, in any event, FNZ had knowledge of the HSSstatement as to probability, and the collective knowledge of the department should betreated as the Minister's own knowledge.33Fisheries Inshore[134] Fisheries Inshore says there is no statutory requirement to "have regard to" theHSS; it is an out of date policy document, it contains a generic set of guidelines whichmay not apply in certain situations, and it does not bind the Minister.[135] Even if the 70 per cent probability specified in the HSS was a mandatoryrelevant consideration which the Minister was required to have regard to, FisheriesInshore said it does not necessarily determine or influence the Minister's decision.Fisheries Inshore said the Minister did in fact have regard to the "default guideline"of 70 per cent probability of rebuild, but decided not to apply it and explained why.[136] Fisheries Inshore said the Minister is free to adopt parts of the policy containedin the HSS, while deciding not to adopt other parts.Te Ohu[137] Te Ohu's submissions on this cause of action were focussed on the argumentsrelating to mistake of fact which, as noted above,34 was not pursued by Forest & Birdat the hearing.Analysis[138] I first consider the content and status of the HSS, before considering whetherthe Minister did in fact have regard to what the HSS says about acceptable levels ofprobability when he made his 2019 Decision.33 Bushell v Secretary of State for the Environment [1980] 2 All ER 608 at 613; RangitiraDevelopments Ltd v Sage [2020] NZHC 1503 at [161].34 See above at [130].The relevant content of the HSS[139] The relevant portions of the HSS relied on by Forest & Bird in this cause ofaction are:• Stocks that have fallen below the soft limit should be rebuilt back toat least the target level in a timeframe between TMIN and 2*TMIN withan acceptable probability.• Stocks will be considered to have been fully rebuilt when it can bedemonstrated that there is at least a 70% probability that the target hasbeen achieved and there is at least a 50% probability that the stock isabove the soft limit.[140] The HSS footnotes this reference with:Use of a probability level greater than 50% ensures that rebuilding plans arenot abandoned too soon; in addition, for a stock that has been depleted belowthe soft limit, there is a need to rebuild the age structure as well as the biomass,and this may not be achieved by using a probability as low as 50%.[141] In addition, the HSS Operational Guidelines say:For both limits [soft limit and hard limit], the ultimate goal is to ensure full rebuildingof the stock to the biomass target with an acceptable probability (70%). The reasonfor requiring a probability level greater than 50% is that a stock that has been severelydepleted is likely to have a distorted age structure (an over-reliance on juvenile fish,with relatively few large, highly fecund fish). In such instances it is necessary torebuild both the biomass and the age composition. The minimum standard for a rebuilding plan is that 70% of the projectedtrajectories will result in the achievement of a target based on MSY-compatiblereference points or better within the timeframe of TMIN to 2*TMIN. This equates to aprobability of 70% that the stock will be above the target level at the end of thetimeframe. [142] The respondents do not challenge the science behind the statements in the HSSand the HSS Operational Guidelines quoted at [139]–[141] above.The status of the HSS[143] The HSS was published in October 2008, after almost four years of intensivedevelopment and consultation. Its publication was accompanied by the first versionof the HSS Operational Guidelines. It was intended that the HSS would be reviewedapproximately every five years, but that the HSS Operational Guidelines would bereviewed and updated more frequently. As Dr Mace notes, they have not been furtherrevised since 2008 and 2011, respectively. Dr Mace observes that reasons for thisinclude that the HSS still largely represents international best practice in terms of thepurpose for which it was designed; it has taken several years for some sectors of thefishing industry and others to fully consider the HSS; and both the Fisheries Scienceand Fisheries Management sections of FNZ have needed to focus on higher priorityissues.[144] The HSS states that it is "a policy statement of best practice in relation to thesetting of fishery and stock targets and limits for fish stocks in New Zealand's QuotaManagement System". It also states that it will "form a core input to the Ministry'sadvice to the Minister of Fisheries on the management of fisheries, particularly thesetting of TACs under sections 13 and 14". The HSS further states that:The metrics specified in the Harvest Strategy Standard are to be treated asdefaults: i.e. they should be applied in most situations. Where proposedmanagement options depart from the Harvest Strategy Standard, they must bejustified in terms of the particular circumstances that warrant such departure.[145] Dr Dunn says in his evidence:Fisheries NZ's Harvest Strategy Standard is a policy statement of best practicein relation to the setting of fishery and stock targets and limits for fish stocksin the [Quota Management System].[146] Those statements are reflected in the Advice Paper to the Minister:The Harvest Strategy Standard (HSS) is a policy statement of best practice inrelation to the setting of fishery and stock targets and limits for fish stocks inNew Zealand's Quota Management System (QMS). It is intended to provideguidance as to how fisheries law will be applied in practice, by establishing aconsistent and transparent framework for decision-making to achieve theobjective of providing for utilisation of New Zealand's QMS species whileensuring sustainability. The HSS outlines the Ministry's approach to relevantsections of the Fisheries Act 1996. It is therefore a core input to the Ministry'sadvice to the Minister of Fisheries on the management of fisheries, particularlythe setting of TACs under sections 13 and 14.[147] The HSS establishes default targets and limits as a minimum standard. Theprinciples in the HSS are stated to be "default rules". A "default" action or positionmeans a typical course of action, unless there are other considerations or exceptionalcircumstances. That is reflected in the HSS itself which says:Other standards that will subsequently be developed may result inmodifications to the Harvest Strategy Standard to incorporate environmentaland other considerations.[148] There is no reference to the HSS in the Act. Nor does s 13 of the Act refer tothe assessment of probability as part of the process of setting a TAC. But, as Dr Maceacknowledges "the HSS still largely represents international best practice in terms ofthe purpose for which it was designed", and it is the "best available information" interms of s 10 of the Act.35[149] Craig Lawson, Executive Chair of Fisheries Inshore, also discusses the HSSand the HSS Operational Guidelines, in his affidavit evidence on behalf of FisheriesInshore. Mr Lawson emphasises that the HSS has not been updated since it wasinitially published in 2008; that it is a "policy statement rather than some rigid standardwhich must be adhered to"; and that it is a "generic set of default guidelines for use bythe Ministry when providing advice to the Minister on making section 13 decisionsunder the Act".[150] Mr Lawson notes that the seafood industry "has never adopted this policydocument" and that it "is not appropriate to be using these default rules in the case ofthe tarakihi fishery where we now have a new and accepted stock assessmentavailable." Fisheries Inshore has pointed to the East Coast tarakihi stock assessmentas further information that justifies a departure from the HSS in respect of tarakihi. Iunderstand this argument to be in support of adopting a different target, rather thandirectly addressing the guidance on probability. While industry representatives arguedfor a species-specific target of 35 per cent SB0 in the Industry Rebuild Plan, rather thanthe HSS "default" target of 40 per cent SBO, FNZ's advice to the Minister was that: in the short term, and in the absence of adequate peer review of scientificevidence, the proxy target of 40% SB0 as recommended by the HarvestStrategy Standard remains appropriate for East Coast tarakihi.35 See above at [22].[151] It is not clear how the tarakihi stock assessment provides a basis for departingfrom the HSS guidance as to probability levels. Fisheries Inshore does not point toother stock-specific information that might justify such a departure and amount to the"best available information".[152] I conclude that the HSS is the "best available information", in terms of s 10(a),in relation to acceptable probability levels, as well as for other matters relevant to theinterpretation of s 13.[153] I also find that, although the HSS is not referred to in the Act, it is an impliedmandatory relevant consideration for the Minister in setting a TAC under s 13. AsCooke J held in CREEDNZ Inc v Governor-General:36What has to be emphasised is that it is only when the statute expressly orimpliedly identifies considerations required to be taken into account by theauthority as a matter of legal obligation that the Court holds a decision invalidon the ground now invoked. It is not enough that a consideration is one thatmay properly be taken into account, nor even that it is one which many people,including the Court itself, would have taken into account if they had to makethe decision. Questions of degree can arise here and it would be dangerous to dogmatise.But it is safe to say that the more general and the more obviously importantthe consideration, the readier the Court must be to hold that Parliament musthave meant it to be taken into account. [154] As McGechan J observed in Taiaroa v Minister of Justice:37When not expressly stated in the statute implied mandatory considerationssometimes may be extracted from the purpose of the statute and probablelegislative intention.[155] In analysing a separate ground of review, of mistake of fact coupled withirrelevant considerations, McGechan J went on to say that if a decision-maker ignoresor acts in defiance of an incontrovertible fact, or an established and recognised bodyof opinion, which plainly is relevant to the decision to be made, the decision may beinvalidated.38 However, the Court noted two points require emphasis:3936 CREEDNZ Inc v Governor-General, above n 32, at 183.37 Taiaroa v Minister of Justice HC Wellington CP99/94, 4 October 1994 at 34.38 At 42. See also Northern Inshore Fisheries Co Ltd v Minister of Fisheries HC WellingtonCP235/01, 4 March 2002 at [47].39 At 42.First, the fact "must be an established and recognised opinion"; and "it cannotbe said to be a mistake to adopt one of two different points of view of the facts,each of which may reasonably be held". Second, the fact or opinion musthave been "actually or constructively within the knowledge of the Minister orthe Ministry"[156] The HSS is an "established and recognised body of opinion". NotwithstandingFisheries Inshore's view that it is not appropriate to use the HSS default guidelines fortarakihi, as I have found and as the Minister acknowledges, the HSS remains bestinternational practice and the best available information. Fisheries Inshore does notadvance any equally credible body of scientific opinion as described in Taiaroa.[157] I do not accept the Minister's submission that the probability range was not amandatory relevant consideration because the Minister's decision did not relate towhether the stock had in fact been fully rebuilt. It is correct that a stock will not bedeclared to be rebuilt until it can be determined that there is at least a 70 per centprobability that the target has been achieved. As the HSS Operational Guidelinesacknowledge, if the initial rebuilding plan is underachieved or overachieved, it mayneed to be revised prior to the termination of the timeframe initially set. That mightbe necessary, for example, where there is an updated stock assessment. But that isdifferent from saying that a 70 per cent probability of rebuild to the target is onlyrelevant at the end of the rebuild, which is how I understand the Minister's submission.As Forest & Bird notes, the HSS Operational Guidelines state that the minimumstandard for a rebuilding plan is that 70 per cent of projected trajectories will achievethe target, and, as I discussed in relation to the second cause of action, the setting ofthe probability is an integral part of setting the TAC.Whether the Minister did in fact have regard to what the HSS says about acceptablelevels of probability when he made his 2019 Decision[158] I turn now to consider whether the Minister did in fact take into account whatthe HSS says about a minimum standard of acceptable probability when he made his2019 Decision.[159] The reasons expressed in the decision and the information supporting thedecision provide the most cogent evidence of what was taken into account for thepurpose of the decision.40 Prima facie, if a relevant factor is not stated as having beenconsidered then it was not considered, although that presumption can be overcome.41[160] FNZ's advice to the Minister was that a "50% probability of reaching the targetis considered acceptable, due to the natural variation caused by fluctuations inrecruitment and environmental conditions". When it advised the Minister that someof the four options put to him "step outside the HSS", that comment related only tothe rebuild period, not to the departure from the HSS guidance on probability.[161] Fisheries Inshore submitted that the Minister did have regard to the 70 per centprobability default in the HSS. However, to support that submission, Fisheries Inshorerelied on aspects of the Minister's affidavit: a reference that relates to the Minister's2018 Decision; and a general comment about committing to a 50 per cent probabilityof rebuild within 25 years, within a focus on the time period rather than the probability.[162] There is evidence that the Minister did consider the HSS guidance onprobability in making the 2018 Decision. In the 2018 Decision the Minister said: The advice provided to me outlined the requirement for a 55% reductionfrom current commercial catch to provide a 50% probability of rebuild within10 years.I note that this is not a particularly high probability of rebuild. However, torebuild with more certainty would require even larger reductions. I considera probability of rebuild of 50% reasonable given the status of the stock, thesize of rebuild required, and the socio-economic impact associated withachieving a rebuild with greater certainty.[163] I acknowledge that in some cases, such as Telecom Auckland Ltd v AucklandCity Council, where a decision-maker has previously made a decision in respect ofmaterially identical facts, it has not failed to consider relevant factors if it does notrevisit the relevant factors when making a further decision.42 However, that is not thecase here. In Telecom, a detail of the decision had been considered a few weeks before,40 Vipassana Foundation Charitable Trust Board v Auckland Council [2017] NZHC 1457, at [48];Vipassana Foundation Charitable Trust Board v Auckland Council [2019] NZCA 100, [2019]NZRMA 380 at [55].41 Graham Taylor Judicial Review: A New Zealand Perspective (4th ed, LexisNexis, Wellington,2018) at [15.50].42 Telecom Auckland Ltd v Auckland City Council HC Auckland M185-93, 28 February 1997 at 10-11.and revisiting it would have been pointless. That is quite different from the Ministerfailing to have regard to an integral part of the process in setting the TAC, whenrevisiting his decision a year later.[164] Although FNZ's June 2019 discussion paper did note that the HSS deems astock to be fully rebuilt when there is at least a 70 per cent probability the stock is ator above target, neither the Minister's affidavit, nor the Minister's 2019 Decision, referto what the HSS says about probability. Neither document indicates that the basis forthe 70 per cent minimum probability rebuild policy was considered.[165] The Minister says, relying on State Housing Action Inc v Minister of Housingand Minister of Finance, that he was not required to be across all the "fine detail";43instead the collective knowledge of FNZ is to be treated as the Minister's ownknowledge, and therefore the Minister was aware of the 70 per cent minimumprobability rebuild policy.44 I do not consider these authorities help the Minister'sargument – it cannot be said that the HSS comments on probability of rebuild were a"fine detail" the Minister did not need to specifically turn his mind to. The HSSrepresents best practice, and the probability of rebuild is a key factor that goes to thestatutory requirement in s 13(2)(b) to set a TAC that enables the level of stock to bealtered at an appropriate rate.[166] In setting the TAC, the Minister must have regard to what the HSS says aboutprobability. While to "have regard to" is not the same as to "give effect to",45 thephrase is generally understood to require a decision-maker to give the matter "genuineattention and thought".46 The weight to be given to the HSS on this point is a matterfor the Minister, but it is not solely at the Minister's discretion. While the HSS doesnot have legislative force, there is no counter argument from the respondents to theHSS statement that one cannot be satisfied that rebuild is complete until there is atleast a 70 per cent probability that the target has been achieved.43 State Housing Action Inc v Minister of Housing and Minister of Finance [2016] NZHC 2924,[2017] 2 NZLR 281 at [34] and [50].44 CREEDNZ Inc v Governor-General, above n 32, at 200-201; Rangitira Developments Ltd v Sage[2020] NZHC 1503 at [161].45 Pacific Trawling Ltd v Minister of Fisheries, above n 17, at [83].46 New Zealand Fishing Association Inc v Ministry of Agriculture and Fisheries [1988] 1 NZLR 544(CA) at 551.[167] I find the Minister did not consider the HSS guidance in relation to probability,in making his 2019 Decision.Conclusion[168] In conclusion, on this cause of action, I find, first, that the guidance onprobability in the HSS and the HSS Operational Guidelines was a mandatory relevantconsideration. Second, I conclude that the Minister failed to have regard to thisrelevant consideration when making the 2019 Decision.Fourth cause of action: irrelevant consideration – the Industry Rebuild PlanSubmissionsForest & Bird[169] The fourth cause of action alleges that, in making the TAC decision, theMinister took into account an irrelevant consideration, being the Industry RebuildPlan.[170] Forest & Bird submitted that, under s 13, the TAC itself must enable the levelof East Coast tarakihi to be altered in a way or at a rate that will result in the stockbeing restored to or above a level that can produce MSY within a period appropriate tothe stock; Forest & Bird says the Industry Rebuild Plan provides for an alternativemanagement approach. Forest & Bird says the Industry Rebuild Plan is not a socialor economic factor and is not a relevant consideration under s 13(3). Additionally, itsays it was not sufficiently certain to be a relevant consideration because it relies onvoluntary adherence.[171] Forest & Bird says that the Minister relied on the Industry Rebuild Plan andthe industry's commitment to a 20 year rebuild timeframe in place of setting (in 2019)the TAC that the Minister had indicated (in 2018) was necessary to implement thephased rebuild within the appropriate period; he agreed to the implementation of theIndustry Rebuild Plan in place of a greater TAC reduction. The Minister relied on theIndustry Rebuild Plan to extend the rebuild period from 10 years to 20–25 years.Forest & Bird says that s 13(2)(b)(ii) does not provide for the period appropriate to thestock to be extended based on industry's commitment to voluntary and unenforceablefishing methods.The Minister[172] The Minister's response to Forest & Bird's submission is that the IndustryRebuild Plan was a permissive consideration, pursuant to s 13(3) and s 11(1)(a) of theAct. It was not a consideration which it was legally improper or illegitimate for theMinister to have regard to.[173] The Minister agrees that the Industry Rebuild Plan cannot replace the statutoryobligation to set a TAC, but says it can be taken into account when considering the"way and rate" at which the level of stock is restored, pursuant to s 13(2)(b)(i). TheIndustry Rebuild Plan was, he says, a social factor and/or an economic factor in termsof s 13(3) – it is a social factor in the sense that it represents how the fishing industrywishes to manage the resource, and it is an economic factor in that it is aimed atmaintaining the viability of fishing.[174] The Minister says that the voluntary measures in the Industry Rebuild Plan,such as avoiding juvenile tarakihi through voluntary closed areas and move-on rules,could reasonably be expected to have an effect on the biomass of the East Coasttarakihi and the rate of rebuild, for the purposes of s 11(1)(a). In addition, theselectivity measures, including changes to fishing methods and gear, have the potentialto benefit the productivity of the stock through increasing the size and age of fishcaught.[175] The Minister notes that, while the significance of these measures may be"immature" at present, the Industry Rebuild Plan can reasonably be considered as aneffect on the fishery under s 11(a). It is permissible for the Minister to work with theindustry over time to monitor the effects of these measures on the fishery.[176] The Minister says the weight to be attributed to the Industry Rebuild Plan is amatter for him, provided it does not jeopardise the ultimate obtainment of BMSY.Fisheries Inshore[177] Fisheries Inshore does not dispute the Minister took account of the IndustryRebuild Plan, but says it was a permissive consideration under ss 13(2) and 11(1)(a).Fisheries Inshore says the Industry Rebuild Plan is not an alternative managementapproach, adopted as an alternative to TAC reduction, but rather it supplemented andenhanced the rebuild plan.Te Ohu[178] Te Ohu endorses the submissions of Fisheries Inshore and the Minister, andsays the Industry Rebuild Plan is a permissible relevant consideration, on the basisthat considering it aligns with the purpose of the Act; it is purpose-built for the rebuildof East Coast tarakihi stocks; and it takes into account economic, cultural and socialfactors. Te Ohu points out that if the Minister had not considered the Industry RebuildPlan, Te Ohu itself would have sought to review the Minister's decision.Analysis[179] I first consider the Industry Rebuild Plan, before considering whether it was anirrelevant factor in setting the TAC. Then I examine whether the Industry RebuildPlan was material to the Minister's 2019 Decision.The Industry Rebuild Plan[180] The Industry Rebuild Plan was developed by Fisheries Inshore, working withTe Ohu and Southern Inshore in 2018–19. A draft "Management Strategy" was firstprovided to the Minister in July 2018.47 The Minister asked for a report from industry,and the Industry Rebuild Plan was provided to FNZ in May 2019.[181] The Industry Rebuild Plan is described by Te Ohu as a holistic approach to therebuild of East Coast tarakihi, which enables social, economic and cultural factors(including considerations of particular importance to iwi) to be addressed.Kim Drummond, Fisheries and Aquaculture Policy Manager at Te Ohu, describes the47 As outlined above at [30].Industry Rebuild Plan as providing for "multiple factors that allow the biomass to berebuilt while mitigating unnecessary impacts on participants and owners."[182] In Te Ohu's submission, the Industry Rebuild Plan also reflects the importanceof the Treaty of Waitangi (the Treaty) relationship between iwi and the Crown (andTe Ohu's role collectively on behalf of iwi in upholding that partnership), and thespecific role of Te Ohu as the custodian of the Fisheries Settlement. It comprisesadvice from Te Ohu to the Minister in fulfilment of Te Ohu's statutory purpose ofadvancing interests of iwi, as well as its statutory function in relation to research intosustainable management of fisheries.[183] Dr Jeremy Helson, Chief Executive of Fisheries Inshore, describes the IndustryRebuild Plan as a comprehensive plan that will contribute very significantly to therebuild of the tarakihi stock: only one element of which is the reduction of catch which has been giveneffect to through the Minister's TAC and TACC decision. The rest of themeasures in the rebuild plan are industry led management measures and workprogrammes [184] Dr Helson's evidence summarises the "industry-led management measures"contained in the Industry Rebuild Plan:(a) catch reduction;(b) catch spreading;(c) reporting sub-minimum legal size tarakihi (now superseded byelectronic reporting requirements);(d) assessing the MSY for the East Coast tarakihi fishery;(e) selectivity measures (changes to fishing gear) to reduce juvenile fishingmortality;(f) regional management and monitoring measures that include closedareas and "move-on" rules;(g) a research project into the proof of concept of a discard chute to collectlength data on those fish legally returned to the sea;(h) enacting s 77 of the Act, which relates to the imposition of overfishingthresholds;(i) developing a management evaluation procedure; and(j) installing cameras on a substantial portion of the trawl fleet in TAR 2and TAR 3 to confirm the level of sub-minimum legal size tarakihicaught and returned to the sea.[185] Finally, the industry's commitment in the Industry Rebuild Plan was to rebuildto an interim target of 35 per cent SB0, not the target of 40 per cent SB0 that the Ministerhad determined was appropriate in 2018. Rebuilding to 40 per cent SB0 would, ofcourse, take longer than rebuilding to 35 per cent SB0.Was the Industry Rebuild Plan an irrelevant factor in setting the TAC?[186] Forest & Bird's submission is that the Industry Rebuild Plan was an irrelevantconsideration in setting the period appropriate to the stock; at best, the effects of theIndustry Rebuild Plan, if successful, may be a permissible relevant consideration inrelation to the "way and rate" of rebuild in the future.[187] Whether a factor is an irrelevant factor depends on whether it is or is notrelevant to the empowering provision. An irrelevant consideration is a matter that thedecision-maker is not permitted (expressly or impliedly) to take into account in theexercise of their discretion.48 To establish that a factor was an irrelevant consideration,it must be demonstrated why it was legally improper or illegitimate to have regard toit.49 A consideration may be a permissible consideration relevant to one criterion of adecision, but irrelevant to another.5048 Berryman v Solicitor-General [2008] 2 NZLR 772 (HC) at [113].49 Mary Moodie Family Trust Board (Inc) v Attorney-General [2015] NZHC 365; [2015] NZAR 379at [149].50 Tuitupou v New Zealand Immigration and Protection Tribunal [2015] NZHC 3158.[188] The effect of s 13(2)(b) is to require the Minister set in place a rebuild plan forthe fishery. As I have already found under the first cause of action, s 13(2)(b)(ii)required the Minister to first set a period appropriate to the stock, having regard to thebiological characteristics of the stock and any environmental conditions affecting thestock. The Minister must then determine the way and the rate at which the stock willbe rebuilt. Section 13(3) enables the Minister to have regard to "such social, culturaland economic factors as he or she considers relevant" in considering the way in whichand rate at which the stock is moved towards or above a level that can produce MSYunder s 13(2)(b).[189] I agree with the respondents that steps taken independently by the industrywhich have the effect of speeding up the rebuild of the stock can be taken into accountas part of the way and rate assessment (under s 13(2)(b)(i)), and may affect theMinister's decision about whether and what reduction in the TAC is necessary. Plainly,measures which may contribute significantly to rebuild of East Coast tarakihi, asDr Helson asserts,51 may be relevant to the way and rate at which the rebuild target isachieved.[190] Forest & Bird says the Industry Rebuild Plan cannot be relevant at all (evenunder s 13(2)(b)(i) or s 13(3)) because it is not sufficiently certain and the measuresare voluntary. Forest & Bird characterises the Industry Rebuild Plan measures in thefollowing terms:The Industry Rebuild Plan measures all fall into one or more of the followingcategories:(a) They do not add to existing legal requirements, for example theyrequire reporting on sub-minimum legal size tarakihi when that isalready required by law.(b) They are voluntary and therefore unenforceable, for example inrequiring signatories to voluntarily "move-on" if they catch too manyjuvenile tarakihi.(c) They are research projects which have the potential in future to assistin rebuild, but do not have any present effect on the age or volume oftarakihi caught.51 As noted above at [183].[191] While I acknowledge Forest & Bird's concerns, I do not consider that thesearguments alone render the Industry Rebuild Plan an irrelevant consideration whenconsidering way and rate under s 13(2)(b)(i). These specific factors go to the weightwhich the Minister gives to the Industry Rebuild Plan.[192] But it does not necessarily follow that the Industry Rebuild Plan was alsorelevant to the setting of the period appropriate to the stock under s 13(2)(b)(ii). Thatis determined having regard to the biological characteristics of the stock and anyenvironmental conditions affecting the stock.[193] I conclude that the Industry Rebuild Plan is not therefore relevant to setting theperiod appropriate to the stock under s 13(2)(b)(ii).Was the Industry Rebuild Plan material to the Minister's 2019 Decision?[194] There is no dispute that the Minister did take the Industry Rebuild Plan intoconsideration. Fisheries Inshore says it was simply as an "enhancement" to thedecision. However, that description is not consistent with the description in the AdvicePaper and the Minister's 2019 Decision.[195] The Advice Paper detailed option 4 as:• Option 4 is a blended option which includes a reduction to the TACCas well as adoption of the Industry Rebuild Plan.Option 4 is an additional option, included post consultation. It represents amiddle ground between the higher TACC reductions proposed underOptions 1 and 2 and the approach under Option 3 (implementation of theIndustry Rebuild Plan). As with Option 3, Option 4 also proposes theadoption of the Industry Rebuild Plan, but is aimed at increasing the certaintyrebuild when compared to retaining the TACC at its current level.[196] The Advice Paper then framed Option 4 in the following terms:If you considered it a priority to rebuild the stock as quickly as possible, in atimeframe that most closely corresponds to the Harvest Strategy Standard,Fisheries New Zealand recommends Option 2.Alternatively, if you consider minimising the socio-economic impacts onfishers, their families and the regional communities an important factor tohave regard to, then Fisheries New Zealand recommends Option 4. While thisoption proposes a catch reduction to ensure an increased rate, and certainty ofrebuild when compared to Option 3, the proposed reduction to the TACC isnot as severe as for Option 2. Therefore, this option minimises the financialimpact on the fishing industry in the short term, allowing them to continue toimplement the Industry Rebuild Plan and support the innovative measuresproposed through this plan.[197] I conclude from these references in FNZ's Advice Paper and the Minister's2019 Decision itself, that the Industry Rebuild Plan was an integral part of theMinister's decision.Conclusion[198] As I have found in relation to the first cause of action, neither theMinister's Decision nor the Advice Paper on which it was based, articulated the periodappropriate to the stock or how that was ascertained. The Minister's 2019 Decisionwas in that sense a global decision and the Industry Rebuild Plan was an integral partof that decision.[199] I agree with Forest & Bird that the Industry Rebuild Plan was the significantfactor which influenced the Minister to set a longer time period than he had indicatedwas necessary in 2018. From that I infer that he had regard to the Industry RebuildPlan in relation to the appropriate period for rebuild, as well as the way and rate ofrebuild.[200] In conclusion, I find that the Minister did have regard to the Industry RebuildPlan in setting the TAC, notwithstanding that the Industry Rebuild Plan was not arelevant factor in relation to the period appropriate to the stock.Fifth cause of action: unreasonablenessSubmissionsForest & Bird[201] The fifth cause of action alleges that the Minister's 2019 decision wasunreasonable. The Minister decided in 2018 that the appropriate period for rebuildingthe East Coast tarakihi stock was 10 years, and that the TAC reduction made in 2018would start the rebuild but would not achieve a rebuilt stock in that period. Forest &Bird submits it was unreasonable for the Minister to decide in 2019 that a suite ofvoluntary measures aimed at achieving a 20 year rebuild period justified adopting a20 year rebuild period, rather than the 10 year period that the Minister had determinedto be appropriate in 2018.The Minister[202] The Minister says in response, first, that he was bound to approach his 2019TAC decision with an open mind – he could not lawfully fetter his discretion in 2018.The Minister submits he was required to provide for the input and participation oftangata whenua and consult with interested parties and genuinely take account of theirsubmissions, before making his 2019 TAC decision.52[203] The Minister submits he recognised the potentially very significantsocio-economic impacts which could result from a 10 year rebuild period. He invitedindustry to submit new and innovative ways to rebuild the East Coast tarakihi fishery,and he submits it was reasonable for him to take into account the package of voluntarymeasures subsequently proposed by the industry.[204] The Minister also notes that with the TAC reduction alone – in addition to thereduction in the previous year – the fishery was predicted to rebuild within 25 years.The Minister was aware this was a departure from the HSS and the preferred periodof rebuild he had indicated in 2018.[205] The Minister submits he was required to balance the competing interests ofproviding for utilisation of fisheries resources, while ensuring sustainability – in doingso, he carefully considered submissions, the best available scientific information, andassessments of economic impacts, whilst taking into account any uncertainty in theinformation.[206] Ultimately, the Minister says, the 2019 Decision was open to him. The weightto be attributed to social, cultural and economic factors was a matter for him. He wasnot constrained by indications made in 2018.52 Fisheries Act, s 12.Fisheries Inshore[207] Fisheries Inshore adopted and relied on the Minister's submissions, noting thehigh hurdle for Forest & Bird to meet the Wednesbury unreasonable test.53[208] Fisheries Inshore also emphasised that the combined effect of the Minister's2018 and 2019 Decisions is in conformity with the essential purpose of the Act, bothto ensure the long-term sustainability of East Coast tarakihi stocks and, specifically,to ensure fish stocks that are below MSY are rebuilt within a timeframe consideredappropriate by the Minister.[209] Fisheries Inshore characterised Forest & Bird's claim as a complaint about therate and certainty of the rebuild.Te Ohu[210] Te Ohu supports the submissions of the Minister and Fisheries Inshore, andsays the Minister's approach is one of "reduce, research and reassess" in order tosustain the stock, the fishers, and the associated economy. Te Ohu says theco-development and co-management approach of the Industry Rebuild Plan reflects ameaningful, productive and Treaty-consistent relationship between Te Ohu, theindustry, and the Crown, for the benefit of New Zealand fisheries.Analysis[211] Forest & Bird acknowledges that the Wednesbury test of unreasonableness, thata conclusion must be so unreasonable that no reasonable decision-maker could havecome to it, imposes a "high hurdle", but says it is met in this case.54[212] Ultimately I have decided that it is not necessary to undertake an analysis ofunreasonableness in the present case. I consider Forest & Bird's arguments under thiscause of action have already been more appropriately addressed in the precedinganalysis: I have already found the Minister made an error of law by conflating53 Associated Provincial Picture Houses Ltd v Wednesbury Corp [1948] 1 KB 223.54 Associated Provincial Picture Houses Ltd v Wednesbury Corp, above n 53.ss 13(2)(b)(i) and (ii) and not separately identifying a "period appropriate to the stock"before applying social, cultural and economic factors to the determination of way andrate of rebuild; I have found that the HSS was a mandatory relevant considerationwhich the Minister failed to have regard to; and I have found that the Minister tookaccount of an irrelevant consideration, the Industry Rebuild Plan, in determining theperiod appropriate to the stock under s 13(2)(b)(ii). Based on those errors, I wouldgrant the relief sought by Forest & Bird.Conclusion[213] It is well accepted that the evidence available to an applicant for judicial reviewmay point towards a number of grounds of review, sometimes overlapping.55 That iscertainly the case here. For that reason, I have not found it necessary to go on andreach a finding on the fifth cause of action.Sixth cause of action[214] All parties are agreed that if the Court orders the TAC decisions to be remade,then the Minister's decisions under ss 20 and 21 in relation to the TACC must also berevisited as the TACC decisions flow directly from the TAC.Summary[215] To summarise, I find:(a) The Minister made an error of law, in that he did not make anassessment of the period of rebuild appropriate to the East Coasttarakihi stock as required by s 13(2)(b)(ii) of the Act.(b) The Minister did not make an error of law in adopting an approach thathad modelled a 50 per cent probability of achievement.55 Attorney-General v E [2000] 3 NZLR 257 (CA) at [55].(c) The guidance on probability in the HSS and the HSS OperationalGuidelines was a mandatory relevant consideration, and the Ministerfailed to have regard to this when making the 2019 Decision.(d) The Minister had regard to an irrelevant consideration, the IndustryRebuild Plan, in relation to the period appropriate to the stock unders 13(2)(b)(ii) of the Act.(e) Given the overlap between Forest & Bird's causes of action, it has notbeen necessary for me to reach a finding on unreasonableness.(f) The 2019 TACC decisions were consequently affected by the materialerrors made in setting the TAC.Relief[216] Forest & Bird originally sought orders setting aside the 2019 TAC and TACCdecisions and declaring the Gazette notice to be invalid to the extent that it relates tothe 2019 TAC and TACC decisions, together with a direction that the Ministerreconsider the 2019 TAC and TACC decisions in light of this Court's decision.[217] Given the lapse of time between the filing of the proceeding and the hearing,at the hearing Forest & Bird sought an order that the Minister's 2019 Decision hascontinuing effect until the 2019 Decision can be lawfully retaken, in light of thisjudgment. That is so because if I were to order that the 2019 Decision be set aside,the position would revert to the (higher) levels set in 2018, which would be a perverseoutcome. Forest & Bird acknowledges that, given the decision could not be retakenin time for the commencement of the 2020 fishing year, it is appropriate for declaratoryrelief to be granted that guides the Minister's decision in 2021. It notes, however, thatthe Minister's 2019 Decision providing a 25 year rebuild period should not form the"baseline" for the 2021 decision.Outcome[218] Accordingly, the Minister's 2019 Decision has continuing effect, pending thedecision to be taken by the Minister in 2021, with effect from 1 October 2021.[219] In making his 2021 decision as to the TAC and TACC for East Coast tarakihi,the Minister should have regard to the findings contained in this judgment.Costs[220] I have upheld four of Forest & Bird's causes of action (having not found itnecessary to consider the unreasonableness cause of action). I indicate that for thepurposes of costs, I consider Forest & Bird the successful party.[221] If the parties are unable to agree on costs, Forest & Bird should file anysubmissions on costs (limited to 10 pages) within 10 working days of the date of thisjudgment; and the respondents should file any submissions in response (also limitedto 10 pages each) within a further 10 working days.______________________________________Gwyn JSolicitors:Crown Law, WellingtonChapman Tripp, WellingtonKāhui Legal, Wellington