ROYAL FOREST AND BIRD PROTECTION SOCIETY OF NEW ZEALAND INCORPORATION v MINISTER OF FISHERIES [2020] NZHC 741

ROYAL FOREST AND BIRD PROTECTION SOCIETY OF NEW ZEALAND INCORPORATION vMINISTER OF FISHERIES [2020] NZHC 741 [9 April 2020]IN THE HIGH COURT OF NEW ZEALANDWELLINGTON REGISTRYI TE KŌTI MATUA O AOTEAROATE WHANGANUI-A-TARA ROHECIV 2019-485-752[2020] NZHC 741UNDER the Judicial Review Procedures Act 2016and Part 30 of the High Court Rules 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 INCORPORATIONApplicantAND MINISTER OF FISHERIESRespondentHearing: 19 March 2020Counsel: S R Gepp for ApplicantN C Anderson and K F Gaskell for Respondent (abides)J P Ferguson and T T H Hullena for Te Ohu Kai Moana TrusteeLimitedB A Scott and B J McIntosh for Fisheries Inshore New ZealandJudgment: 9 April 2020JUDGMENT OF MALLON JIntroduction[1] The applicant (Forest & Bird) seeks to judicially review a decision of the firstrespondent (the Minister of Fisheries). The decision concerns the setting of the TotalAllowable Catch (TAC) and the Total Allowable Commercial Catch (TACC) for EastCoast tarakihi (TAR) fish stocks, known as Quota Management Areas (QMAs) TAR1, 2, 3 and 7. The decision was made in September 2019 and related to the fishingyear commencing 1 October 2019.[2] Fisheries Inshore New Zealand Limited (Fisheries Inshore) and Te Ohu KaiMoana Trustee Limited (Te Ohu) apply to be joined as respondents to the proceeding.Forest & Bird opposes the application and says they should instead be joined asinterveners. The issue for determination is whether Fisheries Inshore and Te Ohushould be able to participate as respondents or as interveners.Factual background[3] Tarakihi is a species of fish that is managed under the Fisheries Act 1996. Aprimary mechanism for managing the sustainability of fisheries is by the Ministersetting the TAC and TACC for each fish stock. The TACC is the proportion of theTAC which can be harvested by commercial fishers, once allowances have been madefor non-commercial catch and other forms of mortality.[4] Quota is allocated in the form of quota shares to quota owners. Quota sharesgenerate an Annual Catch Entitlement (ACE) for commercial fishers under theirfishing permits. The amount of ACE that can be caught is a function of the TACC.Currently, there are approximately 164 quota owners with tarakihi quota shares in theeastern tarakihi fish stocks and 199 commercial fishing permit holders who catch thoseentitlements utilising ACE.[5] Fisheries Inshore represents quota owners and ACE fishers across all theprimary inshore fish stocks including tarakihi. Amongst other things, FisheriesInshore routinely makes submissions in response to consultation proposals fromgovernment. The Minister has an obligation to consult with organisations the Ministerconsiders to be representative of classes of persons having an interest in the stock.1[6] Te Ohu is the trustee of Te Ohu Kai Moana, a trust established under the MāoriFisheries Act 2004.2 Following the fisheries settlement reached between Crown andMāori in 1992, the Crown transferred assets to Te Ohu (or its predecessors) for thebenefit of iwi and Māori. This included the transfer of quota shares (Settlement Quota)1 Fisheries Act 1996, s 12.2 Māori Fisheries Act 2004, ss 31, 32 and 33.in fishstocks.3 Te Ohu is required to allocate and transfer the Settlement Quota to iwiand, pending such allocation and transfer, to hold and manage the settlement assets.4[7] Te Ohu's functions include funding research into sustainable fisheries andprotecting and enhancing the interests of iwi and Māori in fisheries, fishing and fishingrelated activities. It actively engages in the review of sustainability measures byFisheries New Zealand (a business unit within the Ministry of Primary Industries).This review forms part of the Minister of Fisheries' decision-making process in settingTAC and TACC for each fishing year. Te Ohu also makes submissions to the Ministeron these matters. The Minister consults with Te Ohu as a body representative of Māoriinterests in the fishstock or the effects on the aquatic environment.5[8] Te Ohu also has a direct proprietary role in the East Coast tarahiki quota. Itholds quota in TAR 1 for Ngāi Tai and Te Whānau a Apanui, in TAR 2 for Te Whānaua Apanui, Ngāti Porou, Rongowhakaata, Te Aitanga a Mahaki, Te Atiawa (Wellington)and Ngāti Toa, and in TAR 7 for Ngāi Tahu, Rangitāne o Wairau and Ngāti Toa.[9] From April to September 2018 Fisheries New Zealand consulted on threeoptions to rebuild East Coast tarahiki stock.6 This was based on a 2017 stockassessment. On 19 September 2018 the Minister decided on a TACC reduction of20 per cent as part of a phased approach to rebuilding stock over a number of years.[10] In May 2019 Fisheries Inshore, Te Ohu and Southern Inshore Fisheriesprovided a stock rebuild plan (the Industry Rebuild Plan) to Fisheries New Zealand.This was the industry's proposal about how tarakihi stocks could be rebuilt andmaintained. In June 2019 Fisheries New Zealand released an initial position paper forconsultation as part of the 2019 sustainability review. This had three options:3 Treaty of Waitangi (Fisheries Claims) Settlement Act 1992.4 Māori Fisheries Act, s 34 and 130.5 Fisheries Act, s 5: the Minister is required to act in a manner consistent with the Treaty of Waitangi(Fisheries Claims) Settlement Act 1992.6 Option 1: Reducing TAC by 55 per cent, projecting a ten year period to rebuild stock; option 2:reducing TAC by 35 per cent, projecting a 20 year period to rebuild stock; and option 3: reducingTAC by 20 per cent, with no determination as to the period to rebuild stock.(a) Option 1: TACC reduction of 31 per cent, with a 50 per cent probabilityof achieving a target of 40 per cent spawning biomass level (SBL)within 12 years;(b) Option 2: TACC reduction of 35 per cent, with a 50 per cent probabilityof achieving a target of 40 percent SBL within 11 years; and(c) Option 3: Implementing the Industry Rebuild Plan with no TAC orTACC reductions, with the aim of achieving a 35 per cent SBL within20 years.[11] On 26 July 2019 Te Ohu, Fisheries Inshore and Southern Inshore Fisheriesmade a joint submission on these options. Te Ohu also made its own submission onthe same date, as did Forest & Bird. On 30 August 2019 Fisheries New Zealandprovided its final advice paper to the Minister on the sustainability and relatedmeasures for stock for the 1 October 2019 fishing year. This included the three optionsthat were in the June 2019 initial position paper. As a result of consultation, it includeda fourth option. This involved a TACC reduction of 10 per cent combined with theIndustry Rebuild Plan, with the aim of achieving a 40 per cent SBL within 20 years.7[12] By letter dated 27 September 2019, the Minister advised that he had decidedon this fourth option. The 10 per cent reduction together with the Industry RebuildPlan was in addition to the 20 per cent reduction made in the previous year. TheMinister said his decision reflected his understanding of the economic impacts onfishers, their families and the regional communities where they operate, balancedagainst his responsibility to ensure the sustainability of the fishery.The Fisheries Act[13] Part 3 of the Fisheries Act concerns "sustainability measures". It includessections 11, 12 and 13.[14] Section 11(1) provides:7 Without the actions provided for in the Industry Rebuild Plan, the rebuild period would be25 years.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.[15] Section 13 provides: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-(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 [16] Section 12 contains the Minister's obligation to consult on decisions madeunder s 11 and 13.The pleading[17] Forest & Bird's statement of claim has six causes of action. The first cause ofaction alleges the Minister did not vary TAC to enable the level of East Coast tarakihito be altered within a period appropriate to the stock. It alleges the Minister made anerror of law by approaching his decision under s 13(2) of the Fisheries Act as a balancebetween sustainability and socio-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).[18] The second cause of action also alleges the Minister made an error of law. Italleges the Minister did not vary the TAC in a way that "will, in terms of probabilityof achievement, enable the level of East Coast tarakihi to be altered within a periodappropriate to the stock". It alleges there is at most a 50 per cent probability ofachieving the target of 40 per cent SBI within the time period and this is partly becauseit depends on the successful implementation of voluntary management measures. Italleges a probability of 50 per cent at most is not consistent with a mandatoryrequirement to set a TAC that will enable the target to be achieved within a reasonabletime.[19] The third cause of action concerns the use of a government policy document,called the Harvest Strategy Standard, which is used to guide decisions under theFisheries Act. It alleges:(a) Fisheries New Zealand's advice to the Minister included option 4 torecognise social, cultural and economic factors. In giving that advice,Fisheries New Zealand wrongly understood that the Harvest StrategyStandard did not take these factors into account in setting the targetlevel timeframes with an acceptable probability. The Minister's advicewas based on a mistake of fact, being Fisheries New Zealand's incorrectadvice.(b) The Harvest Strategy Standard specifies that 70 per cent was theminimum standard for the acceptable probability of rebuild for the EastCoast tarakihi because of the level of depletion of the stock. TheMinister failed to have regard to a relevant consideration, namely thisminimum standard, when setting TAC with a 50 per cent probability ofachieving the target within the rebuild time frame.[20] The fourth cause of action alleges the Industry Rebuild Plan was an irrelevantconsideration because:(a) it is not a social or economic factor and is not a relevant considerationunder s 13;(b) it relies on voluntary adherence by industry participants and is thereforenot sufficiently certain to be a relevant consideration under s 13;(c) section 13 requires that the TAC be the mechanism by which the stockis restored and the Industry Rebuild Plan cannot be used in its place.[21] The fifth cause of action alleges the Minister's decision was unreasonable,given his decision in 2018 that the appropriate period for rebuilding the stock was tenyears, when the suite of voluntary measures by industry could achieve at best a 20 yearrebuild period.[22] The sixth cause of action alleges that the 2019 TACC decisions wereconsequently affected by the material errors made in setting the TAC.The jurisdictionJoinder as party[23] Procedural provisions for judicial review applications are set out in the JudicialReview Procedure Act 2016. Section 9(1) of this Act provides that the persons whomust be named as a respondent are: the person whose act or omission is the subject ofthe application; and if the application relates to any decision made in proceedings,every party to the proceedings. As the Minister's decision was not made in aproceeding, Forest & Bird was required only to name the Minister as the respondent.[24] However, s 14 of the Judicial Review Procedure Act 2016 provides, amongstother things, that a Judge may direct a person to be named as a respondent at any timebefore the hearing of the judicial review application. No express criteria for theexercise of this power are stipulated.[25] There is also jurisdiction under the High Court Rules 2016 to join a party.8Rule 4.1 provides that parties joined to a proceeding "must be limited, so far aspracticable, to persons whose presence before the court is necessary to justlydetermine the issues arising". To that end, rule 4.56(1) provides that, at any stage ofa proceeding, a Judge may order that a party be named as a defendant because "theperson's presence before the court may be necessary to adjudicate on and settle allquestions involved in the proceeding". Rule 4.56(2) provides that an order may bemade on terms the court considers just.[26] The power in s 14 on its terms is therefore broader than that in the High CourtRules, but regard is had to those rules.9 In Westhaven Shellfish Ltd v Chief Executiveof Ministry of Fisheries the High Court summarised the relevant principles in judicialreview proceedings as follows:10(1) It is not possible and would be inappropriate to lay down any generalpropositions which would apply to all cases of this kind.(2) To the extent that it is possible to articulate useful guidelines, it maywell be appropriate to join a party, where that party's interests aredirectly or indirectly effected, or possibly even where that party has adistinctly arguable case to be so affected. This is because it wouldthen be unjust to decide such issues in their absence.(3) The decision making process does not finish at that point. Joinder isnot an all or nothing thing. The court should, in fairness to theplaintiff, who after all is having another party interposed inproceedings properly commenced by him or her, consider whether thejoinder should be for all or only some purposes. Essentially the court8 Pursuant to r 1.4, the High Court Rules 2016 apply to all civil proceedings subject to, amongstother things, any statute that prescribes the practice and procedure of the court in a proceedingunder that statute.9 Andrew Beck and others McGechan on Procedure (online ed, Thomson Reuters) at [JR14.03].10 Westhaven Shellfish Ltd v Chief Executive of Ministry of Fisheries (2002) 16 PRNZ 501 at [14].has to align the interest sought to be protected with what it is that thefresh defendant, or representative, should be permitted to address. [27] A Full Court of the High Court endorsed these principles in the judicial reviewcontext in Wilson v Attorney-General as follows:11[20] Emerging from the cases is that joinder is appropriate where theparty's interests are, or may be, directly or indirectly affected by the judicialreview application. In such situations, it would be unjust to decide the issuesin the absence of the party so affected, or potentially affected. As HammondJ pointed out in Westhaven Shellfish Ltd "joinder is not all or nothing".Fairness to the plaintiff, who is having another party interposed in hisproceeding, demands that the Court consider whether the joinder should befor all or only limited purposes. The level of participation should be only whatis necessary to protect the interests of the party being added.Intervener[28] In addition to the powers to join a party as a respondent, the Court may grantleave to a non-party to intervene in a proceeding under its inherent jurisdiction andpursuant to the general power in r 7.43A of the High Court Rules to make directionsfor the conduct of the hearing.12 The Court in Aotearoa Water Action Incorporated vCanterbury Regional Council summarised the exercise of this jurisdiction in judicialreview applications as follows:13[5] As one commentator puts it, interveners "may assist the court inproceedings raising questions of public interest or otherwise likely to havesignificant precedent effects". In recent times, applications to intervene havebeen granted in judicial review cases considering, among other issues,voluntary euthanasia, teaching Christianity in public schools, and decisionsmade by the Minister under the Canterbury Earthquake Recovery Act 2011.(footnote omitted.)[29] The discretionary power to grant leave should be exercised with restraint toavoid the risk of expanding issues, elongating the hearing and increasing the costs oflitigation.1411 Wilson v Attorney-General [2010] NZAR 509. See also Independent Fisheries Ltd v Minister forCanterbury Earthquake Recovery [2012] NZHC 1177 at [15].12 McGechan on Procedure, above n 9, HR7.43A.01.13 Aotearoa Water Action Incorporated v Canterbury Regional Council [2019] NZHC 3187.14 C v Accident Compensation Corporation [2013] NZCA 34 at [12], cited in McGechan onProcedure, above n 9 at HR7.43A.01.The difference[30] A respondent who is added to proceedings has all rights that any party has inthe first instance proceeding and in any appeal. In contrast, an intervener has no rightto make oral submissions (it is a matter for the Court whether they may do this), hasno right to make interlocutory applications, has no right of appeal and must generallybear their own costs. It is the right of appeal that is of particular importance toFisheries Inshore and Te Ohu.Examples[31] The parties have referred to a number of cases in support of their respectivepositions. Some of the cases referred to by Forest & Bird are not judicial reviewproceedings and apply a test for joinder that requires a party to be directly affected byan order made in the proceeding.15 Some of them are intervener cases and again areless relevant because Forest & Bird accepts that Fisheries Inshore and Te Ohu shouldbe permitted to intervene.16[32] As set out above, the test for joinder in judicial review applications is broaderthan that which applies in other civil proceedings. Deadman v Luxton discusses thatthis reflects that there is more scope in judicial review proceedings for the rights ofothers to be affected.17 While it will depend on the nature of the decision and thegrounds of review involved:18 frequently the challenge to the exercise of the statutory power or decisionof a public body will have consequential effects upon others who obtainedbeneficial entitlements or expectations following upon the exercise of suchpower.[33] Fisheries Inshore submits cases involving judicial review of decisions by theMinister of Fisheries are more relevant. In addition to Deadman, some examples are:15 Penang Mining Co Ltd v Choong Sam (1969) 2 MLJ 52 (PC); Mainzeal Corporation Ltd vContractors Bonding Ltd HC Auckland CL 154/88, 10 February 1989; and Capital and MerchantFinance Ltd (in rec and in liq) v Perpetual Trust Ltd [2014] NZHC 3205.16 Diagnostic Medlab Ltd v Auckland District Health Board HC Auckland CIV 2006-404-4724, 18October 2006 albeit that at [19]-[25] the Judge discussed Westhaven Shellfish Ltd, above n 10, andpreferred the approach in Wellington International Airport Ltd v Commerce Commission HCWellington CP151/02, 19 July 2002 where the Court applied the test of requiring a direct effect.17 Deadman v Luxton HC Wellington CP71/99, 4 May 1999.18 At 6.(a) New Zealand Recreational Fishing Council Inc v Minister ofFisheries.19 This proceeding concerned the Minister's decisions in2004 and 2005 allocating the TAC and TACC for the kahawai species.The claim was brought by the recreational fishers but the commercialinterests, Sanford Ltd, Sealord Group Ltd, and Pelagic & Tuna NewZealand Ltd, were joined as additional respondents or counterclaimapplicants without objection.(b) Greenpeace New Zealand Ltd v Minister of Fisheries.20 This was ajudicial review of the Minister's decision on the TACC of orangeroughy for the 1993/94 year. The New Zealand Fishing IndustryAssociation Inc, the Exploratory Fishing Company (ORH 3B) Ltd andthe New Zealand Fishing Industry Board were all additionalrespondents.(c) Westhaven Shellfish Ltd.21 In this case the Court accepted that SouthernClams Ltd, which had harvesting rights for cockles in the same area,was appropriately joined as a party, although it was confined tosubmissions on relief.[34] I agree that the fisheries examples are of some assistance. Overall, however,whether a party should be joined as a respondent requires a fact specific assessmentof what is just in light of the act or omission in respect of which judicial review issought and their participation is limited to what is necessary given that party's interest.Assessment[35] Forest & Bird refers to its claim. The first and second causes of action concernthe correct interpretation of s 13. The third cause of action concerns whether, havingdecided to take into account the Harvest Strategy Standard guidelines, the Minister didso correctly. The fourth cause of action directly concerns the Industry Rebuild Plan19 New Zealand Recreational Fishing Council Inc v Minister of Fisheries HC Auckland CIV 2005-404-4495, 11 July 2007.20 Greenpeace New Zealand Ltd v Minister of Fisheries HC Wellington CP492/93, 27 November1995.21 Westhaven Shellfish Ltd v Chief Executive of Ministry of Fisheries, above n 10, at [19].but is on the narrow point of whether it can be taken into account when setting theTAC. The fifth cause of action concerns the reasonableness of the Minister's decisionagainst the backdrop of what was decided in 2018. The sixth cause of action concernsthe consequences on TACC if the alleged errors in the other causes of action are madeout.[36] Forest & Bird submit these are all narrow grounds of review that go to thelawfulness of the Minister's decision. It submits Fisheries Inshore and Te Ohu havenot shown why their interests are not adequately protected by the Minister's defenceof the proceeding. It is concerned the parties will extend the narrow grounds of reviewto a broader range of fisheries management considerations.[37] Forest & Bird submits that the public has an interest in the purpose of theFisheries Act "to provide for the utilisation of fisheries resources while ensuringsustainability" and the Minister's function in setting the 'size of the pie' which giveseffect to this purpose.22 It submits the size of quota, in which it accepts Te Ohu has adirect interest, depends on the size of the pie but says this is not a direct effect. It saysthose with a licence to exploit fisheries do not have greater standing than those with apublic interest in the sustainability of fisheries.[38] I consider the interests which Fisheries Inshore and Te Ohu represent, and TeOhu directly as a quota holder, are affected by the outcome of the judicial review. IfForest & Bird's submissions are accepted, voluntary industry measures will not berelevant to the Minister's decision under s 13. That would undercut the successFisheries Inshore and Te Ohu had in the 2019 review and through the consultationprocess in having the Minister take into account the Industry Rebuild Plan. It is theindustry (as represented by Fisheries Inshore and Te Ohu) that has a particular interestin maintaining its success on this matter.[39] More generally, the Court will make a decision on how s 13 is to be interpretedand, if Forest & Bird is successful, that interpretation will govern the setting of theTAC and, consequently the TACC. This will affect those with quota entitlements.Forest & Bird accepts that Fisheries Inshore and Te Ohu have a sufficient interest to22 Fisheries Act, s 8.intervene. The issue is whether Fisheries Inshore and Te Ohu should be denied theright to appeal if the High Court agrees with Forest & Bird's position. It is conceivablethat the Minister might decide not to appeal the High Court decision, but FisheriesInshore and Te Ohu might wish to do so. I consider their interests are sufficientlyaffected that they should be able to bring an appeal.[40] In my view, Forest & Bird's concern that the issues on the review may becometoo broad can be controlled through the exercise of discipline from the experiencedcounsel representing Fisheries Inshore and Te Ohu. They intend to act collaborativelyand to avoid duplication. They can be expected to do so.[41] I conclude it is just for Fisheries Inshore and Te Ohu to be joined as respondentsrather than to simply to intervene. Given the narrow and overlapping grounds ofreview and Fisheries Inshore and Te Ohu's interest in them, and the collaborationbetween them to ensure focus and to avoid duplication, I do not consider it is necessaryto limit the scope of their participation as respondents at this point.Result[42] The applications by Te Ohu and Fisheries Inshore to join as respondents aregranted.[43] Costs are reserved. The parties did not resist this. I consider they are betterdetermined in the context of the substantive judicial review when the outcome ofForest & Bird's claim will be determined, Te Ohu and Fisheries Inshore's input intothat outcome will be clear and Forest & Bird's public interest role can be considered.These factors constitute special reasons not to fix costs on the joinder application atthis time.Mallon J