THE ENVIRONMENTAL LAW INITIATIVE v MINISTER FOR OCEANS AND FISHERIES [2022] NZHC 2969

THE ENVIRONMENTAL LAW INITIATIVE v MINISTER FOR OCEANS AND FISHERIES [2022]NZHC 2969 [11 November 2022]IN THE HIGH COURT OF NEW ZEALANDWELLINGTON REGISTRYI TE KŌTI MATUA O AOTEAROATE WHANGANUI-A-TARA ROHECIV-2021-485-676[2022] NZHC 2969UNDER Judicial Review Procedure Act 2016IN THE MATTER OF an application for judicial review of adecision of the Minister of Oceans andFisheries under s 13 of the Fisheries Act1996BETWEEN THE ENVIRONMENTAL LAWINITIATIVEFirst ApplicantCARMEN HETARAKA on behalf ofTE URI O HIKIHIKI HAPŪSecond ApplicantAND MINISTER FOR OCEANS ANDFISHERIESFirst RespondentNEW ZEALAND ROCK LOBSTERINDUSTRY COUNCIL INCSecond RespondentNEW ZEALAND SPORTS FISHINGCOUNCIL INCIntervenerROYAL FOREST AND BIRDPROTECTION SOCIETY INCIntervenerTE OHU KAIMOANA TRUSTEE LTDIntervenerHearing: 10&11 October 2022Counsel: D M Salmon KC and M C McCarthy for ApplicantsN C Anderson, S J Jensen and D Ranchhod for First RespondentB A Scott for Second Respondent (via VMR)S J Ryan for New Zealand Sports Fishing Council IncM Wright and M Downing for Royal Forest and Bird ProtectionSociety IncJ P Ferguson for Te Ohu Kaimoana Trustee LtdJudgment: 11 November 2022JUDGMENT OF CHURCHMAN JTABLE OF CONTENTSIntroduction [1]The Act [5]Purpose [8]International obligations [14]Principles [19]Sustainability measures [22]The TAC decisions [23]The advice [30]Positions of the partiesApplicants [41]The Minister [51]NZRLIC [59]RFBPS [64]NZSFC [66]Te Ohu [67]The scientific evidence [68]Consensus evidence [69]Dr Andrew Jeffs [70]Dr Nicholas Shears [73]Vincent Kerr [77]Carmen Hetaraka [80]Dr Stephen Wing [83]Dr Jean Win [88]Dr Paul Breen [91]Relevant LawNature of the applicants' case [97]Statutory decision-making [101]Analysis [110]Remedy [126]Costs [131]Introduction[1] This is an application for judicial review of two decisions made by the Ministerfor Oceans and Fisheries (the Minister) setting a total allowable catch (TAC) under theFisheries Act 1996. The applicants are the Environmental Law Initiative (ELI) andCarmen Hetaraka on behalf of Te Uri o Hikihiki Hapū (the applicants). The Ministerand the New Zealand Rock Lobster Industry Council Limited (NZRLIC) are therespondents. There are three intervening parties, being:(a) the New Zealand Sports Fishing Council Incorporated (NZSFC);(b) the Royal Forest and Bird Protection Society Incorporated (RFBPS);and(c) Te Ohu Kaimoana Trustee Limited (Te Ohu).[2] The applicants challenge the lawfulness of two decisions in respect of the TACfor red rock lobster (Jasus edwardsii), in the Northland quota management area (theTAC decisions). The applicants allege that the advice received by the Minister for thepurpose of making the TAC decisions contained statements that are inaccurate,misleading, and unsupported by peer-reviewed and published literature. They say thatthe advice did not adequately describe what they say is the scientifically establishedeffect of the overfishing of rock lobster on the ecology of the area, particularly inrelation to the development of kina1 barrens. Their view is that rock lobsters are1 Kina are sea urchins (Evechinus chloroticus) endemic to New Zealand.ecologically or functionally extinct in the CRA1 quota management area. They saythat the TAC decisions are therefore unlawful because they do not accord with therequirements of the Fisheries Act 1996 (the Act).[3] The respondents oppose the application. They say that the TAC decisions wereconsistent with the requirements of the Act, and were not made subject to any factualerrors.[4] For the reasons below, I am of the view that the application should be granted.The Act[5] The Minister is responsible for the administration of the Act, including themanagement of fisheries under the quota management system established by pt 4 ofthe Act (QMS). The QMS creates a scheme whereby stocks in different geographicalareas are managed. Stocks are defined by the Act as "any fish, aquatic life, or seaweedof one or more species that are treated as a unit for the purposes of fisheriesmanagement".2 The Minister must make a determination that a stock or speciesbecome subject to the QMS if satisfied that its current management is:3(a) not ensuring the sustainability of the stock or species; or(b) not providing for the utilisation of the stock or species.[6] Once a stock is subject to the QMS, the Minister is required each fishing yearto set "in respect of the quota management area relating to each quota managementstock a total allowable catch for that stock".4 A TAC is the total weight of stock thatmay be taken every fishing year. A TAC must be at a level that maintains the stockat or above a level that can produce the 'maximum sustainable yield' (MSY) orenables the level of any stock whose current level is below MSY to be altered in a2 Section 2.3 Section 17B.4 Section 13.way that results in the stock being restored to that level.5 MSY is defined in theAct as:the greatest yield that can be achieved over time while maintaining the stock'sproductive capacity, having regard to the population dynamics of the stockand any environmental factors that influence the stock.[7] When making decisions under the Act, the Minister must do so in a mannerthat is:(a) consistent with the Act's purposes;6(b) consistent with New Zealand's international obligations;7(c) consistent with the Act's environmental and information principles;8and(d) cognisant of any effects of fishing on any stock and the broader aquaticenvironment.9Purpose[8] The purpose of the Act is to "provide for the utilisation of fisheries resourceswhile ensuring sustainability".10 Ensuring sustainability means:11(a) maintaining the potential of fisheries resources to meet the reasonablyforeseeable needs of future generations; and(b) avoiding, remedying, or mitigating any adverse effects of fishing on theaquatic environment.5 Section 13(2).6 Section 8.7 Section 5.8 Sections 9 and 10.9 Section 11.10 Section 8(1).11 Section 8(2).[9] Utilisation means "conserving, using, enhancing, and developing fisheriesresources to enable people to provide for their social, economic, and cultural well-being".12 The aquatic environment is defined as "the natural and biological resourcescomprising any aquatic ecosystem", and includes "all aquatic life and the oceans, seas,coastal areas, inter-tidal areas, estuaries, rivers, lakes, and other places where aquaticlife exists".13[10] Utilisation, and ensuring sustainability, are "two competing social policies".14In New Zealand Recreational Fishing Council Inc v Sanford Ltd, the Supreme Courtstated:15 The statutory purpose is that both policies are to be accommodated as faras is practicable in the administration of fisheries under the quota managementsystem. But recognising the inherent unlikelihood of those making keyregulatory decisions under the Act being able to accommodate both policiesin full, s 8(1) requires that in the attribution of due weight to each policy that[the weight] given to utilisation must not be such as to jeopardisesustainability. Fisheries are to be utilised, but sustainability is to be ensured.This ultimate priority is recognised in the two definitions. The firstconsideration in the definition of "utilisation" is the conserving of fisheriesresources. Their use, enhancement and development, to enable fishers toprovide for their social, economic and cultural wellbeing, are considerationswhich follow. The definition of "ensuring sustainability", on the other hand,reflects the policy of meeting foreseeable needs of future generations which isconcerned with future utilisation. These complementary definitions applywhenever those terms are used in the Act.[11] The purpose of the Act therefore is broadly to create an environmental 'bottom-line' of sustainability and the key lever in ensuring sustainability is the administrationof the QMS, through the setting of TAC, with sustainability as the "guidingcriterion".16 However:17While sustainability is the guiding criterion, the Minister has some flexibilityunder s 13 to consider aspirations of the fishing sectors for utilisation of theresource. In considering the way in which, and rate at which, a stock is movedtowards or above a level producing a maximum sustainable yield, the Ministermust have regard to [such] "social, cultural and economic factors as he or she12 Section 8(2).13 Section 2.14 New Zealand Recreational Fishing Council Inc v Sanford Ltd [2009] NZSC 54, [2009] 3 NZLR438 at [39].15 At [39]–[40].16 At [43].17 At [44].considers relevant".18 This imports into the process for setting the totalallowable catch a key aspect of the definition of "utilisation" in s 8(2).[12] The definition of utilisation includes the concept of cultural wellbeing, whichincludes obligations of kaitiakitanga by iwi, hapū and whānau Māori, within theirrespective rohe, defined in the Act as:19the exercise of guardianship; and, in relation to any fisheries resources,includes the ethic of stewardship based on the nature of the resources, asexercised by the appropriate tangata whenua in accordance with tikangaMaori.[13] The Act requires that prior to setting TAC, the Minister shall consult with andprovide for the input and participation of tangata whenua, and have particular regardto kaitiakitanga.20International obligations[14] New Zealand is subject to the requirements of the United Nations Conventionon the Law of the Sea (UNCLOS), from which certain aspects of the Act derive, aswell as other international law instruments.21 Section 5 of the Act provides that:This Act shall be interpreted, and all persons exercising or performingfunctions, duties, or powers conferred or imposed by or under it shall act, in amanner consistent with—(a) New Zealand's international obligations relating to fishing; and(b) the provisions of the Treaty of Waitangi (Fisheries Claims) SettlementAct 1992.[15] Both the applicants and respondents are agreed that there are two approachesto fisheries management that are identifiable at international law, being an 'ecosystemapproach' and 'precautionary approach'. The parties differ in their emphasis on theseapproaches, but both accept that they are relevant.18 Section 13(3).19 Section 2.20 Section 12(1).21 See UNCLOS, art 61; United Nations Food and Agriculture Organisation (FAO) Committee onFisheries' Code of Conduct for Responsible Fisheries; and Rio Declaration on Environmentand Development 1992.[16] The ecosystem approach requires decision-makers to incorporate widerecosystem effects into fisheries management, instead of considering sustainabilitywith a single-species focus. This approach is acknowledged in the Act through therequirement for the Minister to consider the interdependence of species when makinga decision as to TAC, as well as through ss 9 and 11.22 The ecosystems approachrequires that decisions as to the:23management of fishery resources are considered in the context of thefunctioning of the wider marine ecosystems in which they occur to ensure thelong-term conservation and sustainable use of those resources and in so doing,safeguard those marine ecosystems.[17] The precautionary approach stipulates that decision-makers are more cautiouswhere information is uncertain, unreliable or inadequate, and that "The absence ofadequate scientific information shall not be used as a reason for postponing or failingto take conservation and management measures".24 As to the precautionary approach,the Rio Declaration on Environment and Development 1992 provides:25In order to protect the environment, the precautionary approach shall bewidely applied by States according to their capabilities. Where there arethreats of serious or irreversible damage, lack of full scientific certainty shallnot be used as a reason for postponing cost-effective measures to preventenvironmental degradation.[18] This approach is acknowledged in the Act by s 10.Principles[19] Sections 9 and 10 contain principles that the Minister "shall take into account"when making decisions pursuant to the Act, these are:2622 Section 13(2).23 Convention on the Conservation and Management of High Seas Fishery Resources in theSouth Pacific Ocean, SPRFMO (adopted 14 November 2009, entered into force 24 August2012), art 3(2)(b).24 Agreement for the Implementation of the Provisions of the United Nations Convention on the Lawof the Sea of 10 December 1982 relating to the Conservation and Management of StraddlingFish Stocks and Highly Migratory Fish Stocks 2167 UNTS 3. New Zealand ratified thisinstrument on 19 July 1996; see Joanna Mossop "Law of the Sea" in Alberto Costi (ed) PublicInternational Law: A New Zealand Perspective (Lexis Nexis, Wellington, 2020) 687 at[13.4.2].25 Rio Declaration on Environment and Development (adopted 14 June 1992), principle 15.26 Section 9.(a) associated or dependent species should be maintained above a levelthat ensures their long-term viability:(b) biological diversity of the aquatic environment should be maintained:(c) habitat of particular significance for fisheries management should beprotected.[20] And:27(a) decisions should be based on the best available information:(b) decision makers should consider any uncertainty in the informationavailable in any case:(c) decision makers should be cautious when information is uncertain,unreliable, or inadequate:(d) the absence of, or any uncertainty in, any information should not beused as a reason for postponing or failing to take any measure toachieve the purpose of this Act.[21] The Act defines "best available information" as "the best information that, inthe particular circumstances, is available without unreasonable cost, effort, or time".Sustainability measures[22] When setting or varying TAC the Minister must take into account any effectsof fishing on any stock and the aquatic environment.28 'Effect' means the direct orindirect effect of fishing, including any positive, adverse, temporary, permanent, past,present, future, and/or cumulative effect.29 'Fishing' means the catching, taking, orharvesting of fish, aquatic life, or seaweed.30The TAC decisions[23] The TAC decisions challenged by the applicants relate to the red rock lobster,which is subject to the QMS.27 Section 10.28 Section 11(1)(a).29 Section 2.30 Section 2.[24] The applicants' focus is entirely on the Northland quota management area(CRA1). CRA1 extends from the Kaipara Harbour on the west coast, around CapeReinga, and south to Te Arai Point.31 This area includes the rohe moana32 of Te Uri oHikihiki. The TAC decisions challenged by the applicants in respect of CRA1 are:(a) the Minister's 16 March 2021 decision to retain the TAC for red rocklobster as 203 tonnes (2021/22 decision); and(b) the Minister's 29 March 2022 decision to decrease the TAC for red rocklobster to 193 tonnes (2022/23 decision).[25] The CRA1 area is managed to the minimum target of the biomass that willproduce MSY, referred to as BMSY, an approach which the applicants say does notinvolve the application of any ecosystem considerations.33[26] In respect of the 2021/22 decision, two options were presented to the Minister.These were:(a) maintaining the TAC of 203 tonnes on the basis that the 2020 rapidassessment update projected that, as a result of the 2020 TAC decisionvulnerable biomass and spawning biomass would increase within thenext four years; or(b) decreasing the TAC to 180.5 tonnes in order to improve the likelihoodthat the vulnerable biomass would increase.[27] The Minister chose the first option, retaining the TAC of 203 tonnes.[28] In respect of the 2022/23 decision, four options were presented to the Minister,these were:31 Schedule 1, Part 3.32 The area of the sea with which they are customarily associated.33 Reply affidavit of Dr Andrew Jeffs at [19].(a) Option 1.1: maintaining the TAC of 203 tonnes on the basis that theTAC was recently decreased and the decrease had assisted inmaintaining CRA1 above the BMSY reference level, which was expectedto allow rock lobster to continue to fulfil its role in in the ecosystem;(b) Option 1.2: decreasing the TAC by five per cent (193 tonnes)recognising CRA1 is near the BMSY level and aiming to increase thecertainty that the stock will remain at or above this level, which wasexpected to allow rock lobster to fulfil its role in the ecosystem to anunknown but potentially greater level than option 1.1;(c) Option 1.3: decreasing the TAC by nine per cent (185 tonnes)recognising CRA1 is near the BMSY level and aiming to increase thecertainty that the stock will remain at or above this level, which wasexpected to allow rock lobster to fulfil its role in the ecosystem to anunknown but potentially greater level than options 1.1 or 1.2; or(d) Option 1.4: decreasing the TAC by 12 per cent (179 tonnes) recognisingCRA1 is near the BMSY level and aiming to increase the certainty thatthe stock will remain at or above this level, which was expected to allowrock lobster to fulfil its role in the ecosystem to an unknown butpotentially greater level than the other options.[29] The Minister opted for Option 1.2, reducing the TAC for rock lobster by fiveper cent to 193 tonnes.The advice[30] Prior to making the TAC decisions, the Minister received advice from NationalRock Lobster Management Group (NRLMG), a multi-stakeholder group, andFisheries New Zealand (FNZ), which is a business unit within the Ministry for PrimaryIndustries (MPI). The advice included 'rapid' assessments, which are conducted todetermine the status of a stock, but are less thorough than 'full stock' assessments.NRLMG is a:34national-level, multi-sector group composed of an independent chairperson,representatives of the customary, recreational, and commercial fishing sectors,environmental interests, Ministry for Primary Industries fisheries compliance,and FNZ.Each year FNZ and the NRLMG review the best available information fromupdated stock assessments and monitoring of rock lobster and advise [theMinister] if changes are required to catch settings and regulatory controls toensure they are appropriate.[31] FNZ undertakes consultation with the Iwi Fisheries Forum (IFF) to supportyearly reviews of stock levels, and inform advice received by the Minister. The IFFare regionally located and the CRA1 Forums are the Te Hiku o te Ika Fisheries Forum,and the mid-North IFF.35 The rohe moana of Te Uri o Hikihiki is within the area ofthe mid-North Forum.[32] Advice provided by FNZ and/or NRLMG is informed by research publishedin MPI's 'Aquatic environment and biodiversity annual review' (AEBAR). TheAEBAR is, according to FNZ, "the best scientific information as at the year publishedon the effects of fishing on the environment, marine biodiversity, and aquaticenvironments".36 Chapters in the AEBAR are reviewed and updated annually, and are"intended to assist decision makersby providing the most up to date information onthe interaction between fisheries and the aquatic environment".37[33] At the time of the TAC decisions, the relevant version of the AEBAR was the2019-2020 version, which was published in June 2020. Despite the indication that theAEBAR is reviewed and updated annually, it is common ground that the chapter on"trophic and ecosystem-level effects", which discusses trophic cascades, rock lobstersand kina barrens, has not been updated since 2014.38 Accordingly, there is researchpublished subsequent to 2014, that is not included, and therefore did not inform advice34 Affidavit of Hon Minister David Parker, 11 July 2022, at [33]–[34].35 Affidavit of Monique Lisa Andrew, 6 July 2022, at [40].36 Affidavit of Dr Jean Pepper Win, 8 July 2022, at [11].37 At [20].38 At [23].provided to the Minister. The passages of the chapter that are relevant to the effectsof rock lobsters on kina barrens state:In New Zealand, observations in a number of northern marine reserves showedan increase in the abundance and size of red rock lobsters and piscinepredators of algal grazing invertebrates which coincided with a gradualdecrease in urchin density and an increase in algal cover (Babcock et al. 1999,Shears & Babcock 2002, 2003, Salomon et al. 2008, Babcock et al. 2010).These changes, suggestive of a trophic cascade (see section 13.1.3.2) areconsistent with the results of ecosystem models of the role of rock lobsters inNew Zealand rocky reef ecosystems, using both qualitative (Beaumont et al.2009) and quantitative frameworks (Pinkerton et al. 2008, Eddy et al. 2014,Pinkerton 2012). Shears et al. (2008) found that the occurrence of this trophiccascade in northern New Zealand was likely to vary at local and regionalscales in relation to abiotic factors. From a New Zealand-wide perspective,Schiel (2013) concludes that urchin predators play a role in the dynamics ofkelp beds only in some northern localities, and that environmental and climaticinfluences, species' demographics, and catchment-derived sedimentation aregenerally more important.In moderately exposed coastal marine reserves in northeastern New Zealand,predation by recovering populations of snapper (Pagrus auratus) and spinylobsters (Jasus edwardsii) have gradually decreased the abundance of thegrazing sea urchin (Evechinus chloroticus) and allowed turfing algae and kelp(Ecklonia radiata) to replace urchin grazed rock flats (Babcock et al. 1999,Shears & Babcock 2002, 2003). This is indicative of top-down forcing in theecosystem. In adjacent areas which are heavily fished there are more urchins,and areas free of turfing algae and kelp are common (Shears et al. 2008). Itseems that the occurrence of this trophic cascade varies at local and regionalscales in relation to abiotic factors, implying some interplay with larger-scalebottom-up forcing (Shears et al. 2008).[34] The final advice paper prepared by NRLMG in respect of the 2021/22 decisioncontains a single reference to the relationship between rock lobster fishing and kinabarrens, which states:Some published literature suggests that decreased predation from large reefpredators such as rock lobsters, snapper and other fishes is responsible forpopulation increases in sea urchins and destruction of kelp forests. Thishypothesis is controversial and the literature equivocal. There is researchsuggesting that on some rocky reefs in the north of New Zealand, recovery ofpredators such as rock lobsters and snapper inside marine reserves has led tothe recovery of macro-algal habitat through predation on urchins. However,there is also contradictory evidence. Sea urchin populations are affected byfactors other than predation, such as diseases and temperature effects onrecruitment. In other parts of New Zealand, environmental and climaticinfluences, species' demographics, and catchment-derived sedimentation aregenerally more important.[35] This statement was drafted by Dr Paul Breen, who also provided feedback onthe final advice paper.39 As to his decision to retain the TAC of 203 tonnes, theMinister stated that he understood this statement in the final advice paper to mean:40that some research indicated a correlation between the removal of keystonepredators, such as rock lobster, and the destruction of kelp forests (leading tourchin barrens – but:that there was uncertainty about causation; andin areas outside the north of New Zealand the other factors listed weregenerally more important.[36] However, the Minister goes on to say:41In preparation for this litigation, I have been advised by FNZ that although thestatement [in the final advice paper] may be technically accurate (particularlywhen applied to New Zealand as a whole), there is (and was) a reasonablystrong evidential basis for the hypothesis in the [north-eastern] region ofNew Zealand – especially in the adjacent CRA2 area where much of theresearch has been undertaken.[37] As to the 2022/23 decision, the final advice paper provided to the Ministercontained more detailed advice on kina barrens and trophic cascades, but stated:Managing above BMSY may also have environmental benefits, as increasingrock lobster abundance may enable the species to fulfil its role in theecosystem to a greater degree; however, the nature and magnitude of thesebenefits is uncertain. The impact of an increase in rock lobster abundance onthe ecosystem is unknown. While rock lobsters are important as both apredator and prey species, trophic interactions are complex and not wellunderstood. While the magnitude of these potential environmental changes isunknown, they are expected to be smallest for Option 1.1 and greatest forOption 1.4.[38] FNZ also prepared an advice paper dated 8 March 2022, which stated, "FNZconsiders a small TAC decrease wouldaddress concerns regarding rock lobsterabundance and the aquatic environment".[39] As to his decision to decrease the TAC, the Minister states that at the time ofmaking that decision he noted that:4239 Above n 35, at [66].40 Above n 34 at [52].41 At [53].42 At [73.1]–[73.4].There is evidence from some locations in northern New Zealand that the lowerabundance of predator species (including rock lobster) has enabled kinapopulations to increase and destructively graze on kelp – leading to urchinbarrens.The main evidence for decreased predation leading to kina barrens comesfrom trends in areas in northern New Zealand closed to fishing andcomparative studies with nearby unprotected areas.The formation of kina barrens appears to be affected by other environmentalfactors and the strength of the effects appears to vary with environmentalcontext.Kina barrens are less common in southern New Zealand, but not absent.[40] He also recorded in his decision letter as to the 2022/23 decision that:The exact nature of the relationship between rock lobster and urchin barrensis unknown and there is some evidence that other factors, such assedimentation and wave action, are at play and seem to be important in otherareas. I consider that the proposed change to the CRA1 TAC is sufficient tomove the stock further above BMSY to realise benefits from increasedabundance, while reducing the negative socio-economic impact on the fishingindustry and associated businesses and communities.Positions of the partiesApplicants[41] The applicants submit that the advice received by the Minister in respect of theTAC decisions was misleading and materially inaccurate, and that therefore, thedecisions were unlawful. They say that scientific evidence establishes that:Rock lobster are a key predator of sea urchins, Evechinus chloroticus (kina).Through overfishing, rock lobster are now functionally or ecologically extinctwithin CRA1, meaning they no longer interact significantly with other speciesin the ecosystem, including in particular in their role as a predator of kina.Where kina populations are not controlled by predation, they can destructivelygraze down entire kelp forests, resulting in areas known as "kina barrens",which are areas of bare rocky reef. This chain of events is known as a "trophiccascade". Once established, a kina barren can take decades to reverse, evenwhen kina numbers are reduced. Kina barrens are already present withinCRA1, which is concerning given the significant ecological and economicvalue of kelp forests.(footnotes omitted)[42] Mr Salmon KC, counsel for the applicants, advances the following fivegrounds of review:(a) the 2021/22 decision was unlawful, as it was not based on the bestavailable information and because the advice provided was materiallyinaccurate, and the Minister failed to consider mandatory relevantconsiderations or adopt a precautionary approach;(b) the 2022/23 decision was unlawful as it was not based on the bestavailable information and because the advice provided was materiallyinaccurate, and the Minister failed to consider mandatory relevantconsiderations or ensure sustainability;(c) the Minister failed to consider the adverse effects of rock lobster fishingon abundance, as required under s 11;(d) the exercise of the Minister's powers in making the TAC decisions wasinconsistent with the Act's purpose, in that it failed to ensuresustainability; and(e) the exercise of the Minister's powers in making the TAC decisions wasinconsistent with the Act's purpose, in that it failed to provide for thecultural wellbeing of Te Uri o Hikihiki, or ensure the participation oftangata whenua.[43] The applicants allege that the relevant AEBAR chapter did not represent thebest scientific or most recent information on the "interaction between fisheries and theaquatic environment," when it was published in June 2020. They say therefore thatthe Minister was advised incorrectly and unlawfully. They submit that the presentationof the four options to the Minister for the 2022/23 decision was also incorrect, in thatit was represented to the Minister that all four options complied with the purposes ofthe Act.[44] Mr Salmon submits that the Act requires the Minister to act in accordance withNew Zealand's international law obligations, particularly to take both an ecology-focused approach to fisheries management, and to favour precaution whereinformation is unclear. He says that the international law instruments favour aprecautionary approach, and tempering that approach by consideration of utilisation isnot appropriate. In this respect, Mr Salmon submits that the Minister did not adopt anecology-based approach, as he was presented with no information as to whatecological effect each proposed option would have on the aquatic environment. Hegoes further and says that there was no evidence at all that any of these options wouldhave an effect on the ability of rock lobster to fulfil its ecological role.[45] Mr Salmon relies on the evidence of the various expert witnesses and submitsthat:There is no scientific literature that questions the evidence for the hypothesisin north-eastern New Zealand, and no contradictory evidence or alternativeexplanations for the changes demonstrated that kina barrens have developedin the presence of healthy populations of rock lobsters.[46] He describes Dr Breen's evidence and input to the decision-making process as"an overwriting of a poor summary of outdated science with non-science by anindustry representative". Mr Salmon submits that Dr Breen's evidence is unpublished,untested, and presents as impartial when there is reason to suggest that it is not.[47] Mr Salmon submits that the advice to the Minister was inconsistent with s 11because it was confined to the direct effects of the fishing methods employed, anddoes not refer to the indirect, future and cumulative effects of removing rock lobsterfrom the aquatic ecosystem on kina. He says that the Minister needed the relevantinformation before him in order to take into account mandatory relevantconsiderations. Because that information was not before him, the Minister failed toconsider those relevant considerations.[48] The applicants submit that the Minister acted inconsistently with the Act'spurpose by failing to ensure sustainability, because the advice he received for the TACdecisions was inaccurate and misleading. They say that none of the options proposedto the Minister were sufficient to ensure sustainability.[49] Finally, the applicants say that the Act's purpose requires the Minister toprovide for utilisation in a manner that results in cultural wellbeing, which includesupholding kaitiakitanga over taonga species. The Minister must also provide for theinput and participation of tangata whenua. They say that in the making of the TACdecisions the Minister acted inconsistently with the Act by failing to provide for Te Urio Hikihiki's cultural wellbeing, as they were not invited to participate in the mid-NorthIFF. They say the Minister also did not adequately grapple with the effects of hisdecision on kaitiakitanga.[50] As to remedy, the applicants seek:(a) a declaration that the TAC decisions were unlawful, for the reasonsnoted in their submissions; and(b) an order requiring the Minister to remake the 2022/23 decisionconsistently with any declaratory relief.The Minister[51] Mr Anderson, for the Minister, submits that whether a stock ought to bemaintained at a certain level is a matter that is wholly within the discretion of theMinister. He does not dispute the basis of the applicants' evidence, that theproliferation of kina can lead to kina barrens, but submits that the Minister did not actunlawfully.[52] He submits that the TAC decisions are consistent with the requirements of theAct, in that they were both projected to increase the level of CRA1 stock further aboveBMSY. He submits that the alleged errors of fact may only be set aside if they are sountenable and unsupportable that they amount to an error of law, and that none of thealleged errors meet that standard.43 Specifically, he submits that:(a) the statement that the trophic cascade hypothesis is 'controversial' andthe literature is 'equivocal' is true as it relates to the entirety ofNew Zealand and therefore the 2021/22 decision was not unlawful;43 Bryson v Three Foot Six Ltd [2005] NZSC 34, [2005] 3 NZLR 721 at [26].(b) the Minister's statements in his decision letter for the 2022/23 decisioncannot reasonably be expected to capture the nuance of the advice hereceived and he accepted that the relationship between lobster and kinabarrens in northern New Zealand might be different to what existedelsewhere in New Zealand;(c) it is inappropriate for the Court to determine or resolve scientificquestions demanding the evaluation of contentious expert opinion;44(d) the applicants have misconstrued the references in the 2022/23 finaladvice paper as to the role of lobster in the ecosystem;(e) the TAC decisions were in fact based on the best available informationin relation to kina barrens; and(f) the evidence does not show that the Minister failed to adopt the correctapproach or act in accordance with the Act.[53] Counsel submits that the Minister's decisions were appropriately cautious inthe circumstances, and that uncertainty was not used as a reason for postponing orfailing to take measures to achieve the purposes of the Act. He says that the Courtshould not engage in a thinly veiled merits review by assessing individual decisionsagainst isolated aspects of the statutory purpose. Counsel submits that the Ministerdid not proceed on the basis of any erroneous facts, but rather made evaluativeconclusions, which may only be challenged if they are clearly untenable. He says thatthe Minister was entitled to adopt the reasonable evaluative conclusions of hisofficials, notwithstanding the applicants' view.[54] Counsel submits that the advice received by the Minister was prepared througha robust process with input from experts, including FNZ management and NRLMG,who included comments and consultation in the final advice. He says the AEBARrepresents the best scientific information on the effects of fishing on the aquatic44 New Zealand Climate Science Education Trust v National Institute of Water and AtmosphericResearch Ltd [2012] NZHC 2297, [2013] 1 NZLR 75 at [46]–[47].environment at the year published. He says that the relevant passages of the AEBARare consistent with the advice given to the Minister, and that there is support generallyfor the content of the AEBAR. He says that the Minister's decision on that advice wasan evaluative conclusion.[55] Counsel submits:there is no reviewable error of fact in respect of the 2022/23 final advicepaper because the Minister did not consider the TAC would allow kōura toarrest or reverse the formation of kina barrens. He was simply of the view thatmore kōura would allow them to play a greater role in the ecosystem and thatthere would be benefits from increased abundance. That was a reasonableposition to take.[56] Counsel further says that the TAC decisions are consistent with s 13(2) and thepurpose of the Act as a whole – again submitting that as a decision-maker, the Ministeris entitled to come to an evaluative conclusion. He submits that the Minister wasaware of the environmental bottom-line, and acted in accordance with it. He says thatfishing is not a 'no effects' activity and that the Minister is not required in any singledecision to avoid or remedy all adverse effects on the aquatic environment. Hesubmits that the Minister's decisions provide for the utilisation of the CRA1 stockwhile also ensuring its sustainability. He says:While the Minister acknowledges the importance of kelp forest habitats andthe biodiversity they support, the evidence indicates that the formation of kinabarrens is constrained by environmental factors and reversible over time. Inthe circumstances, it must be open to the Minister to begin increasing theabundance of predator specieswhile appropriate management targets –taking into account broader ecosystem considerations – are developed.[57] As to the fifth ground of review, relating to the cultural wellbeing of Te Uri oHikihiki, the Crown submits that this must fail alongside the fourth ground of review,because the Minister did not fail to avoid, remedy or mitigate the adverse effects oflobster fishing on the aquatic environment. Counsel says that the allegations that theMinister failed to provide for the participation of tangata whenua or consult withTe Uri o Hikihiki were unpleaded and are unable to be raised in submissions. Hesubmits that in any case the Minister considered the views of tangata whenua and madedecisions that were projected to increase the abundance of stock.[58] As to the possibility of relief, the Crown submits that any remedy should beonly declaratory, and that if the applicants are successful:The most sensible approach would be for the Court to grant declarations forthe Minister to consider in his review of the settings for the CRA1 stock infuture years.NZRLIC[59] Counsel for NZRLIC, Mr Scott, supports and adopts the submissions for theMinister. He submits that:(a) the Minister did not act inconsistently with the operative provisions ofthe Act, and made a broad evaluative decision having regard to all ofthe statutory criteria in the operative provisions;(b) the Minister was not wrongly advised on the trophic cascadehypothesis, and the advice he received was accurate, adequate, andreflected the best available information;(c) the applicants have not pleaded that the Minister failed to consider anycriteria in the operative provision;(d) the purposes and principles of the Act provide a framework fordecision-making for operational decisions, which are evaluative innature, and which only in extreme circumstances may be overturned;and(e) the submissions as to lack of consultation and/or participation were notpleaded by the applicants, or provided an adequate foundation inevidence.[60] Mr Scott says that purposes and principles provisions are not to be used asoperative provisions in their own right, instead only to guide the exercise of decision-making powers. He says that guiding provisions do not provide a discrete set ofseparate mandatory relevant considerations which can be used as a basis for reviewseparated from the operative provisions. Contrary to the position taken by counsel forthe Attorney-General, he submits that the purpose provisions of the Act do not createan environmental bottom-line.[61] Like Crown counsel, Mr Scott submits that the applicants are seeking to reviewthe merits of the Minister's decisions, rather than the lawfulness of the process thatwas followed. He says that the weight to be given to competing considerations is amatter for the decision-maker which, in the absence of irrationality, is unable to bereviewed.[62] Mr Scott submits that the Act's specific inclusion of utilisation as a compositeor dual purpose alongside ensuring sustainability recognises that fishing has effects,acknowledges that stock do not exist in isolation, and provides mechanisms forsustainable fishing. He says that over a longer period of time, the Minister has beenincreasing BMSY in CRA1, that the TAC decisions support that theme, and thereforethey cannot be unlawful, as they fulfil the Act's purposes.[63] As to the evidence, he says that the science shows that there is no basis for theapplicants' view that the advice received by the Minister was wrong. He says that itis a matter upon which the experts can legitimately disagree. He says that Dr Breen isadequately qualified and that his view is not erroneous. He says that there iscontroversy in the literature and that it is equivocal, especially in relation toextrapolating the evidence relating to marine reserves in CRA2 to CRA1 and also therest of New Zealand. He submits that the evidence for alleging that rock lobster arethe controlling predator of kina is limited, and the applicants' view does not adequatelyaccount for other predators, particularly snapper.RFBPS[64] Ms Wright in her submissions for RFBPS, focused on the 2022/23 decision, asthat decision has superseded the 2021/22 decision. Primarily, she submits that theinformation provided to the Minister was not specific to CRA 1, and that therefore itwas misleading, and failed to provide a fair, accurate or adequate report on materialmatters. She says that the Minister was required to give genuine attention to eachenvironmental principle in s 9, and all of the matters contained in s 11. She says thathe did not do so, and that the TAC decisions were unlawful.[65] Ms Wright submits that the 2022/23 decision was not made in accordance withthe Act's purpose of ensuring sustainability, and that the Minister did not turn his mindto it. Likewise, she says that the Minister failed to consider the need to provide forthe cultural wellbeing of tangata whenua in making that decision. She says that therewas no evidence to support the conclusion that the 2022/23 decision would supportcultural prosperity or advance kaitiakitanga principles.NZSFC[66] Counsel for NZSFC, Mr Ryan adopts the submissions made by Ms Wright forRFBPS. He submits that there "would appear no sound reason why availableinformation could not have been provided to the Minister".Te Ohu[67] Te Ohu did not file evidence or submissions for these proceedings, butsupported the submissions provided by the respondents. Having reviewed thesubmissions of the other parties, they provided a memorandum which included thefollowing statement:(a) there are no material issues arising which warrant specific responseby Te Ohu having regard to its roles and responsibilities; and(b) it is unnecessary for it to take a substantive role in the proceedings.The scientific evidence[68] A large amount of expert evidence was filed with the Court for this proceeding.Much of this evidence was consensus evidence. However, for current purposes it isnecessary to make some findings in respect of the evidence.Consensus evidence[69] I am satisfied that the evidence before the Court shows that:(a) rock lobsters have an important ecological role in coastal ecosystems;4545 Affidavit of Dr Andrew Jeffs, 6 May 2022 at [9]; and Affidavit of Monique Andrew, 6 July 2022at [20].(b) their primary ecological role is as a predator in shallow water areas;46(c) in New Zealand, rock lobsters prey upon sea urchins/kina;47(d) kina are an important herbivore on rocky reefs in north-easternNew Zealand because they can consume entire kelp forests and otherseaweeds;48(e) generally, the ecological role of rock lobsters as a predator influencesthe ecological role of the species they prey on;49(f) where there are fewer rock lobsters, there is an increased population ofkina, thereby increasing the grazing activity of kina, and resulting inthe loss of strands of seaweed, particularly kelp forests, in coastal areas,described as a "trophic cascade";50(g) trophic cascade has been reported in New Zealand, and areas affectedby it are described as 'kina barrens', which take decades to reverse;51(h) loss of kelp forests is ecologically damaging for surrounding coastalsystems, in fisheries production, biodiversity, and ocean carbonsequestration;5246 Affidavit of Dr Andrew Jeffs, 6 May 2022 at [9].47 Affidavit of Dr Andrew Jeffs, 6 May 2022 at [9]; and Affidavit of Dr Nicholas Shears, 6 May 2022at [12] and [18].48 Affidavit of Dr Nicholas Shears, 6 May 2022 at [11].49 Affidavit of Dr Andrew Jeffs, 6 May 2022 at [12].50 Affidavit of Dr Andrew Jeffs, 6 May 2022 at [12]; Affidavit of Dr Nicholas Shears, 6 May 2022at [12]; Affidavit of Vincent Kerr, 6 May 2022 at [28] and [34(e)]; and Affidavit of Dr StephenWing, 8 July 2022 at [11].51 Affidavit of Dr Andrew Jeffs, 6 May 2022 at [12] and [14]; and Affidavit of Dr Paul Breen, 18 July2022 at [47].52 Affidavit of Dr Andrew Jeffs, 6 May 2022 at [16]–[19]; and Affidavit of Dr Nicholas Shears,6 May 2022 at [10].(i) there is strong evidence that trophic cascade has significantlycontributed to the presence of kina barrens in the north-east ofNew Zealand, within both CRA1 and CRA2;53(j) there are other factors, such as water temperature, water depth, stormdamage, sediment and kelp disease that may impact on the prevalenceof kina barrens;54 and(k) there is a lack of evidence as to this relationship around the remainderof New Zealand.55Dr Andrew Jeffs[70] Dr Jeffs is a Marine Scientist at the University of Auckland, whose researchinterests include a focus on the biology and aquaculture of lobsters. Dr Jeffs' evidencewas that over the course of his lifetime and career he has observed:56[a] decrease in the abundance of rock lobsters as a result of fishing, increasein sea urchin numbers, the loss of seaweed habitat and the correspondingincrease of what is known as urchin barrens. This widespread pattern ofecosystem change that I have witnessed is entirely consistent with the trophiccascade described by the research of other scientists. The only instances ofreversal of this phenomenon that I have witnessed first-hand are in threemarine reserves in north-eastern New Zealand (at Leigh, Tāwharanui andHahei), where prevention of fishing has increased rock lobster abundance andproduced a corresponding decrease in urchins, and a marked increase in theextent of seaweed habitats.[71] His view is that the loss of seaweed habitats is of significant ecologicalconcern, and there is evidence which establishes that the phenomenon is largely aresult of a decrease in rock lobster abundance.57 Dr Jeffs' evidence is that the material53 Affidavit of Dr Andrew Jeffs, 6 May 2022 at [12]; Affidavit of Dr Nicholas Shears, 6 May 2022at [12]; Affidavit of Vincent Kerr, 6 May 2022 at [28] and [34(e)]; and Affidavit of Dr StephenWing, 8 July 2022 at [11].54 Affidavit of Dr Stephen Wing, 6 July 2022 at [11]; Affidavit of Dr Paul Breen, 18 July 2022 at[28]; and Reply Affidavit of Dr Nicolas Shears, 15 August 2022 at [15].55 Affidavit of Dr Stephen Wing, 6 July 2022 at [24]; and Affidavit of Dr Paul Breen, 18 July 2022at [14.2]–[14.3].56 Affidavit of Dr Andrew Jeffs, 6 May 2022 at [14].57 At [21].provided to the Minister in respect of the TAC decisions "have been, and remain,inadequate and wrong".58 He says that:59there is no scientific literature that questions the evidence for the hypothesisin north-eastern New Zealand, and no contradictory evidence or alternativeexplanations for the changes observed in marine reserves. Further, while manyfactors influence kina population and where they occur, there is no scientificevidence demonstrating that kina barrens have developed in the presence ofhealthy populations of rock lobster.In my view, the advice provided to the Minister in respect of his 2021/22decision is misleading as it understates the body of available scientificevidence supporting the contention that rock lobster fisheries are resulting inwidespread and adverse ecological changes in the coastal environment.Furthermore, the ecological significance and extent of these changes are alsonot included in the advice to the Minister.[72] Dr Jeffs says that the options presented to the Minister as to proposedadjustment to TAC are based entirely on the management of rock lobster populationfor maintaining fishing activities.60 They do not refer to or include any environmentalconsiderations, for example, the need to mitigate against ongoing adverse ecologicalchange in coastal environments. This is consistent with the methodology applied todecisions relating to rock lobster TAC, and stock adjustments generally, the consensusbeing that the lens applied is one of balancing utilisation with sustainability, without(as yet) detailed consideration of 'ecosystem-based fisheries management'.61 Dr Jeffsexpressed agreement with the evidence of Dr Shears and Vincent Kerr.Dr Nicholas Shears[73] Dr Nicholas Shears is an Associate Professor at the University of Auckland.He is involved in long-term monitoring of coastal areas in the northeast ofNew Zealand. Dr Shears' evidence addresses the same matters as Dr Jeffs, and is inagreement with him and Mr Kerr.58 At [22].59 At [24]–[27].60 At [31].61 See Affidavit of Dr Leyla Knitweis-Mifsud, 8 July 2022 at [28]; and Reply Affidavit of Dr AndrewJeffs, 28 July 2022 at [19].[74] Dr Shears evidence is that kina barrens have become a prominent habitat onrocky reefs in the north-east of New Zealand, particularly in the CRA1 area.62 He saysthat studies of marine reserves in that area reveal that the recovery of rock lobster andother predators (such as snapper) has led to decline in kina, and an eventual recoveryof kelp forests.63 However, kina barrens persist where rock lobsters are rare.64 Hesays:65The importance of rock lobster as predators of kina has been demonstratedthrough numerous field and laboratory experiments. This research, along withthe chronology of kina barren development (in terms of its relationship toindustrial-scale removal of rock lobster), unequivocally demonstrates the rolethat rock lobster historically played in controlling kina populations andpreventing urchin barren development.(footnotes omitted)[75] Dr Shears' view is that without predatory control of kina populations by rocklobsters, kina numbers will increase in locations where they can form barrens.66 Hesays that the Minister's view that the literature suggests that the effect on kelp beds ismore complex than solely top predator abundance is misleading. In response, hesays:67While many factors influence kelp forests, this framing obscures the causallink between fishing of predators and kina barrensThere is no literaturedemonstrating that kina barrens have developed in the presence of healthypopulations of rock lobster. By contrast, the casual relationship between theremoval of rock lobster through fishing and the development of kina barrensis well documented and understood.[76] He says that the "only known factor to promote kina barren formation innorthern New Zealand is the loss of predators", and that on that basis, the advicereceived by the Minister suggesting that the causes of kina barrens are complex and/orunclear, is misleading and/or incorrect.6862 Affidavit of Dr Nicholas Shears, 6 May 2022 at [12].63 At [12].64 At [12].65 At [12].66 At [14].67 At [20].68 At [28]–[50].Vincent Kerr[77] Vincent Kerr is a principal science advisor at Kerr & Associates, whichengages in environmental consulting, focusing on marine ecology mapping, habitatplanning, and marine protected area design and planning. He has been involved inscientific investigation and research at Mimiwhangata from 2002 onwards, and hasrecently provided expert evidence in Environment Court proceedings.69 Mr Kerragrees with the evidence of Dr Shears and Dr Jeffs.[78] Mr Kerr says that his research at Mimiwhangata showing very low levels ofrock lobster abundance is indicative of what is being observed along the remainder ofthe east coast of Northland.70 The research undertaken at Mimiwhangata since theearly 1970s also indicates that the effect of overfishing on ecology has been a concernin Northland for approximately 50 years.71 That research has been undertaken incollaboration with kaumātua of Te Uri o Hikihiki, a relationship that is currently heldwith Carmen Hetaraka.72[79] Mr Kerr's research illustrates that the abundance of lobster in Northland otherthan in 'no-take areas', has significantly decreased since the 1970s.73 He says that this"certainly contributes to the formation and persistence of kina barrens".74 He remainsof the view that rock lobster are "ecologically extinct" within the CRA1 area.75Mr Kerr says that the options presented to the Minister were inadequate given that"only the application of no-take areas or fishing moratoriums can support recoveryeffectively".76 His view is that the advice presented to the Minister that the science iscontroversial, hypothetical, equivocal or complex, is incorrect.7769 Motiti Rohe Moana Trust v Bay of Plenty Regional Council [2018] NZEnvC 67.70 Affidavit of Vincent Kerr, 6 May 2022 at [13].71 At [15]–[19].72 At [24]–[26].73 At [43]–[46].74 At [46].75 At [48].76 At [54].77 At [55].Carmen Hetaraka[80] Carmen Hetaraka represents Te Uri o Hikihiki, a hapū of Ngāti Manaia andNgāti Wai, and has been involved in the management of the rohe moana of Te Uri oHikihiki from a young age. Their rohe moana is within CRA1, from Motu KōkakoIsland at the northern tip of Rakaumangamanga/Cape Brett Peninsula toMimiwhangata.[81] Mr Hetaraka's evidence addresses the importance of Te Rohe Moana o Te Urio Hikihiki, particularly in relation to rimurimu (kelp) and kōura (lobster/crayfish),which are a taonga to them. He states:78RimurimuRimurimu are the forest of the seaRimurimu holds the same significanceand importance as Kauri and Tōtara forests of the land. If they are overharvested, it has negative impacts on the weather and the environment. We areseeing the violation of our moana and the loss of our kelp forests through theoverharvesting of kōura and tāmure (snapper), leading to the proliferation ofkina barrens. The kina barrens are the tohu (sign) of the imbalance.KōuraOur kaumātua Eta Haika was not a scientist or marine biologist, but he knewin the 1950s where the reefs and abundant areas of large kōura and tāmurewere. This abundance had turned to scarcity by the mid-1970sTraditionally,when you harvest crayfish in season [it] can be found in the seaweed, but nowthere is no seaweed in [our] tauranga moana...In accordance with our mātauranga in observing our fisheries, we know thatcommercial fishing has severely depleted kōura in our rohe and this has hadnegative effects on the biodiversity of the coastal part of our rohe.[82] Mr Hetaraka says that Te Uri o Hikihiki have not been properly consulted asto the effects of TAC on their rohe moana, in that they have not participated in thediscussions of the mid-North IFF. They would support a rāhui to allow for theregeneration of rock lobster and kelp forests.7978 Affidavit of Carmen Hetaraka, 16 November 2021 at [28]–[30].79 At [38].Dr Stephen Wing[83] Dr Stephen Wing is a Professor of Marine Science at the University of Otago.Dr Wing's evidence addresses the scientific evidence for the existence of trophiccascades in north-eastern New Zealand kelp forest ecosystems, decision-makingprocesses around setting TAC, and the evidence of the applicants.[84] Dr Wing considers that some of the advice provided to the Minister in the final2020/21 advice paper was misleading and incomplete. He states:80it does not recognise that there can be multiple causality in ecologicalsystems. The fact that other factors can influence sea urchin populations doesnot negate the important role that large predators can have. The scientificresearch on trophic cascades using marine reserves contrasted with fullyfished areas highlights the fact that populations of rock lobsters outside of themarine reserves in some cases have lost the ability to regulate sea urchinpopulations.The mismatch of BMSY to achieving ecosystem basedobjectives in fisheries management is a well understood problemAccordingly, evidence that some areas lack sea urchin barrens and also havelow rock lobster biomass does not contradict the conclusion [above].Similarly, correlations between rock lobster biomass, or indices of biomasswithout data on size structure, and presence of sea urchins is inadequate toresolve the effect because small lobsters, even if abundant, are ineffectivepredators on adult sea urchins once those adult sea urchins becomeestablished.[85] Dr Wing considers that there is substantial scientific evidence that rock lobsterscan reduce the abundance of sea urchins, thereby influencing the distribution andabundance of kelp forest habitats.81 He says that some of Dr Shears' work is the "bestavailable information on the subject" in the north of New Zealand.82 He also says thatthe size of the impact is modulated by local environmental conditions.83 Further, hesays that it is true that sea urchins are affected by other factors other than predation,but that: 84There is good evidence that maintenance of a mature size distribution andrelatively high abundance of rock lobsters can be insurance against theprobability that development of an outbreak of adult sea urchins will occur80 Affidavit of Dr Stephen Wing, 6 July 2022 at [12]–[13].81 Affidavit of Dr Stephen Wing, 6 July 2022 at [14].82 At [15].83 At [16].84 At [18].[86] Dr Wing's view is that despite evidence being clear in the north-east ofNew Zealand, there is no data that indicates what the status of the relationship betweenrock lobsters and kina barrens throughout New Zealand is.85 He also says:86However, recognition of the complexity of the interaction [between rocklobster abundance and kina barrens] is not grounds for its dismissal (whichwould not be consistent with the precautionary principle of managing complexecological systems).The science indicates that top-down controls bypredators on sea urchin populations can be the dominant driver in situationswhere rock lobsters are abundant and have mature size distributions.Additional environmental influences on [the] formation of sea urchin barrensdoes not negate this potential effect[87] Dr Wing broadly agrees with the evidence of Dr Jeffs, Dr Shears, and Mr Kerr.Dr Jean Win[88] Dr Jean Win is a Senior Scientist of aquatic environments within FNZ/MPI.Her evidence addresses the Aquatic Environment and Biodiversity Annual Review(AEBAR) and its role in the Minister's decision on TAC, the role of rock lobster inthe ecosystem, and the status of research within FNZ on the 'trophic cascadehypothesis'.[89] Dr Win's evidence is that the AEBAR is intended to assist decision-makerswith the complexity and interconnectedness of oceanic systems, by providing the mostrecent information on the relationship between fisheries and aquatic ecology.87Dr Win considers that the chapter on trophic cascades "provides a fair summary of theresearch in existence at the time it was written".88[90] In respect of the advice received by the Minister for the 2022/23 TAC decision,Dr Win says that as a matter of logic, statements regarding lobster fulfilling a greaterrole in the ecosystem under options that would decrease TAC are reasonable, becausethose decisions would increase the abundance of lobster.89 She also says that FNZ'strophic cascade research project will be commencing as soon as practicable following85 At [24].86 At [30].87 Dr Jean Win, 8 July 2022 at [19]–[20].88 At [26].89 At [29].the completion of this proceeding.90 Dr Win does not dispute the evidence of Dr Jeffs,Dr Shears, Mr Kerr, or Dr Wing.Dr Paul Breen[91] Dr Paul Breen is a semi-retired independent fisheries stock assessment scientistbased in Wellington, with approximately 50 years' experience working for theCanadian and New Zealand governments, and NIWA, as an independent consultant.His research interests have included work on the role of lobsters in forming sea urchinbarrens. Dr Breen has provided evidence for the second respondent, the New ZealandRock Lobster Industry Council Inc.[92] Dr Breen acknowledges that the applicants' trophic cascade hypothesis issupported by evidence in two marine reserves south of CRA 1, but says that othersupport is limited, and that it is speculative to extrapolate from those marine reservesto other locations.91 He says:92The evidence for rock lobsters being the controlling predator of sea urchins,to the exclusion of other predators, is very limited. There are few, mostly oldand not very detailed, rock lobster feeding studies. Medium-sized rocklobsters were shown to eat all sizes of sea urchins, but all sizes preferredsmaller sea urchinsthere is very limited experimental study of the feedingof other predators, such as snapper. It is speculative to suggest that, if predatordepletion has allowed sea urchin barens to form, rock lobster fishing is thecause.[93] Dr Breen says that Dr Shears' view is not sufficiently supported by theavailable evidence, and that the ecological issues of trophic cascades are complex andpoorly understood.93 He says that Dr Jeffs' view that international literature supportsthe trophic cascade hypothesis in New Zealand is speculative, given that there is"serious controversy in the international literature".94 He says that the advice given tothe Minister was correct.9590 At [32].91 Affidavit of Dr Paul Breen, 18 July 2022 at [14.2]–[14.3].92 At [14.4].93 At [14.8] and [14.9].94 At [14.10].95 At [14.11].[94] Dr Breen acknowledges that there is strong support for the trophic cascadehypothesis based on research undertaken at the Leigh and Tāwharanui marinereserves, but that it ignores the roles of other predators in reducing kina abundance.96He says also that the absence of longitudinal studies as to the location and size of kinabarrens over time, creates uncertainty as to the relative size of barrens now, comparedto historically.97[95] Dr Breen's view is that the assertion that rock lobsters are functionally extinctis misleading as it is not based on any quantitative operational meaning orassessment.98 He however accepts that:99it is apparent that barrens comprise a variable proportion of the availablereef within CRA 1Although the overall extent of sea urchin barrens coverage within CRA 1 isunknown, the various surveys suggest it is significant in some areas. Becauseof the very high ecological productivity of kelp and high species diversitywithin kelp forest, any anthropogenic loss of kelp forest comprises a seriousproblem.[96] I note that the literature review upon which his evidence is based remainsunpublished, unlike the research of Dr Shears. Dr Shears asserts that Dr Breen'sliterature review was not published, because "it did not provide a balanced, accurate,and constructive review of the available literature.100 As noted, the evidence ofMonique Andrew also shows that Dr Breen's literature review was relied on to developadvice to the Minister.101Relevant LawNature of the applicants' case[97] Mr Salmon was at pains to characterise the applicants' case as not attemptingto relitigate the merits of the Minister's decision, but rather as "a reasonably standardform of judicial review" seeking to interrogate the advice and information the Minister96 At [18.3].97 At [20.2].98 Affidavit of Dr Paul Breen, 18 July 2022 at [34].99 At [47]–[48].100 Reply Affidavit of Dr Nicolas Shears, 15 August 2022 at [28].101 Affidavit of Monique Andrew, 6 July 2022 at [66] and [87].received. He submitted that the applicants were not attempting to substitute theirdecision for the Minister's.[98] The respondents differed on this point, attempting to cast the applicants' caseas one going to the merits of the Minister's evaluative conclusion, a matter the Courtis not required, or able to consider. The matter is relatively finely balanced, however,I accept Mr Salmon's submissions on this point. I note that the relief sought by theapplicants, being declaratory in nature, does not seek to substitute the Minister'sdecision for their own. As will also be seen below, there is authority illustrating theability of the Court to determine factual errors on the basis of a lesser standard thanthat of Bryson, in a fisheries context.[99] The reality in the present case is that the Minister will be required to reconsiderthe 2022/23 decision in light of the best information available, and in accordance withthe purposes and principles of the Act. However, the result of that decision, and theweight to be accorded to the various factors will remain a decision for the Minister.[100] It is not correct to say that the applicants seek to substitute the Minister'sdecision for their own, but rather, they seek to establish that the decision was madewithout the best available information, and was therefore unlawful. I accept thatsubmission and the applicants' claim is one that the Court may inquire into.Statutory decision-making[101] It is well established that the exercise of statutory powers must be consistentwith the purposes and principles of the empowering legislation, and that a decisionwill be unlawful if it is premised on materially incorrect advice.102 As stated byRichardson J, a "duty to exercise the statutory discretion on reasonable groundsnecessarily requires that the Minister be adequately informed as to the relevantconsiderations and that he take them into account".103[102] While I am of the view that this principle does not add much to therequirements of the Act that the Minister must make decisions in reliance on the best102 CREEDNZ Inc v Governor-General [1981] 1 NZLR 172 (CA) at 200.103 Auckland City Council v Minister of Transport [1990] 1 NZLR 264 (CA) at 303.available information104, it is clear in the authorities that "An improperly informedexercise of a discretion is not a proper exercise".105 As stated by McGechan J:106Essentially, if a decision-maker ignores or acts in defiance of anincontrovertible fact or an established and recognised body of opinion, whichis plainly relevant to the decision to be made – in a sense that Parliament musthave intended it to be taken into account – the decision may be invalidated.Two points, however, require emphasis. First, the fact "must be an establishedone or an established and recognised opinion"; and "it cannot be said to be amistake to adopt one of two different points of view of the facts, each of whichmay be reasonably held". This is judicial review; and not a statutory appealon [the] facts with [the] power to substitute a preferred view. Second, asTipping J put it, the fact or opinion must have been "actually or constructivelywithin the knowledge of the Minister or the Ministry", constructiveknowledge being in the sense that the Minister "should have been aware ofthe fact [or] opinion"; or as Cooke P put it (in the context of mandatorystatutory considerations) facts "which were or ought to have been known tohimself or the Ministry". Third, the matter is to be looked at as at the date ofthe impugned decision. Facts which come to light subsequently, and which itcannot be said the Minister or Ministry should have known at the time, areexcluded. Administration does not require clairvoyance.(citations omitted)[103] Mr Salmon referred me to several cases in which the best information availableprinciple had been applied in a fisheries context, the first of which was AntonsTrawling Company Ltd v Minister of Fisheries.107 Mr Salmon relied upon these casesto establish that the information principles in the Act are "not a light-touch obligation".He expressed the view that having regard to the best available information in ascientific context is an incident of lawful decision-making, which is elevated in afisheries context. I accept that submission.[104] In Antons Trawling, when setting TAC for orange roughy in the ORH1 area,the Minister was not advised that a topographical survey could have been undertakento access stock levels more accurately. Miller J stated:108The future availability of information that might allow stock estimates wasa relevant consideration in his decision to set a new TAC at that time. TheFinal Advice Paper invited the Minister to discount it completely. When he104 Section 10.105 Heretaunga Residents Association Inc v Hutt City Council HC Wellington CIV-2003-485-1158,17 February 2004.106 Taiaroa v Minister of Justice HC Wellington CP99/94, 4 October 1994, at 42–43.107 Antons Trawling Company Ltd v Minister of Fisheries HC Wellington CIV-2007-485-2199,22 February 2008.108 At [61].inquired, the Minister was told unequivocally that no further information wasexpected at any time. That justifies the inference that he did not take theavailability of a topographical survey into account in his decision.Underlying this omission was a decision by officials to discount atopographical survey because it would not produce "conclusive" information.That overlooked s 10. A TAC-setting decision should begin by identifying thebest available information, being information that is available withoutunreasonable cost, effort, or time, and decisions may be based on suchinformation although it is incomplete or inadequate or unreliable. To overlookthis was an error of law that has apparently led officials to conclude too readilythat it will not be possible to estimate BMSY in the near future.[105] Mr Salmon cited Northern Inshore Fisheries Company Ltd v Minister ofFisheries, in which the Minister incorrectly used calculations designed to predict thepossibility of population growth, to predict the possibility of the extinction of theHectors dolphin. As to s 10, Ronald Young J stated:Here, however, s 10(a) reinforces any common law obligation to discover allthe relevant facts. The section is a legislative direction to decision-makers.And the difficulty in this case is compounded by the proposition that the May2000 information was clearly out of date by August 2001. As to relevance ofthis see Mum v Attorney-General [1994] NZAR 457 HC.The Defendant submitted that if the Ministry properly carried out the s 12consultation then that effectively satisfied the s10(a) requirements. I acceptthat proposition if and only if the consultation in fact results in the bestinformation being available to the Minister. But if the thrust of the Defendant'ssubmission is that consultation alone is sufficient, whatever informationresults, then I reject that interpretation. Section 10(a) is a clear statement aboutthe quality of the information to be available to decision-makers. No doubtthis reflects the substance and importance of the decisions being made underthe Act. They may affect the livelihoods of many and the extinction orcontinued existence of animal species.[106] Finally, Mallon J has also stated:109I consider that the "take into account" and "should" wording in s 10 wasintended to achieve a balance. As with s 9, the decision maker retains adiscretion but is directed as to his or her responsibility. In the usual coursedecisions are to be based on best available information (because they shouldbe). Before making his or her decision the Minister is required to consider this(because he or she is required to take this into account). To consider this theMinister must know what information is available and at what cost and in whattimeframe. If he or she decides not to base his decision on the best availableinformation there would have to be a reason for not doing so. Such a decisionmight, of course, be open to review as being "unreasonable".109 New Zealand Federation of Commercial Fishermen Inc v Minister of Fisheries HC Wellington,CIV-2008-485-2016 at [39].[107] These considerations need to be construed within the broader context of theAct. That includes its purposes as described in Sanford by the Supreme Court, theinternational law position, and the various principles the Minister was required to takeinto account when making the TAC decisions.[108] Accordingly, I accept Mr Salmon's submission that the importance of therequirement relating to the use of the 'best available information' in a fisheries context,is somewhat elevated. Indeed, the purposes of the Act appear to create what could bedescribed as an 'environmental bottom-line'110, and are accordingly complemented bya scheme that favours precaution.111 I also consider that the fact that the Ministry iscurrently engaged in developing a greater focus on the ecological approach to fisheriesmanagement as a factor weighing heavily in the exercise. I am drawn to thisconclusion as it evidences an acknowledgment by the Ministry that it is required toadopt such an approach.[109] I note also the Supreme Court's view that international instruments do notassist in the interpretation of the information principles in s 61 of the ExclusiveEconomic Zone and Continental Shelf (Environmental Effects) Act 2012.112However, the fisheries context is sufficiently different to warrant a different conclusionthat the precautionary principle does apply and Crown counsel appeared insubmissions to accept that point.Analysis[110] The issue of whether the Minister's decision was based on the best availableinformation, and therefore whether it constitutes an error in law, requires aconsideration of the scientific evidence summarised between [69] and [96] above.[111] As I have set out above, there is agreement between Dr Jeffs, Dr Shears andMr Kerr in respect of the existence and importance of trophic cascade in the north-eastern part of New Zealand. Dr Wing is also in broad agreement with their evidence110 Above n 13, at [39]–[40].111 See s 13(b).112 Trans-Tasman Resources Ltd v Taranaki-Whanganui Conservation Board [2021] NZSC 127,[2021] NZLR 801 at [108]–[109].and Dr Win does not dispute that evidence. The contrary evidence comes fromDr Breen. Beyond acknowledging that the applicants' trophic cascade hypothesis wassupported by evidence from the two marine reserves south of CRA1, he suggests thatthe conclusions reached by the other experts were speculative, not sufficientlysupported by the available evidence, and related to a topic that was poorly understoodand complex.[112] I find that it is significant that Dr Breen's literature review has not beenpublished. I do not need to resolve the question of whether, as asserted by Dr Shears,the reason for the non-publication is because it did not provide a balance, accurate andconstructive review of the available literature. Irrespective of the reason for non-publication, that fact indicates that the research has not been peer reviewed and foundsuitable for publication.[113] It is undisputed that Dr Breen's literature review had been relied upon todevelop advice given to the Minister. Based on the evidence of the scientists calledby the applicants, I accept that the information provided to the Minister and uponwhich he based his decision, was not the best available information and was materiallyinaccurate.[114] The relevant AEBAR chapter does not represent the best scientific or mostrecent information on the interaction between fisheries and the aquatic environmentwhen it was published in June 2020. It had not been updated in this regard since 2014.[115] The scientific information provided to the Minister misleadingly conflated theinformation in relation to kina barrens and trophic cascade in the subject area with thesituation pertaining to the rest of New Zealand. I reject the submission advanced onbehalf of the first respondent that, as it relates to the entirety of New Zealand, thetrophic cascade hypothesis might be described as "controversial" and the literature"equivocal" making the 2021/22 decision "not unlawful". The focus in this case is noton "the rest of New Zealand" but on the decision as it related to CRA1.[116] For the reasons advanced by Mr Salmon, I reject submission that the Minister'sdecisions were consistent with the purposes of the Act insofar as those purposesrequire a consideration of both utilisation and sustainability.113[117] I reject Mr Scott's submission that the Act does not contain an environmentalbottom-line. Section 9 sets out mandatory environmental principles. It says:Environmental principlesAll persons exercising or performing functions, duties, or powers under thisAct, in relation to the utilisation of fisheries resources or ensuringsustainability, shall take into account the following environmental principles:(a) associated or dependent species should be maintained above a levelthat ensures their long-term viability;(b) biological diversity of the aquatic environment should be maintained;(c) habitat of particular significance for fisheries management should beprotected.[118] Because of the deficiencies in the information provided to the Minister, hisdecision did not comply with the mandatory environmental principles.[119] In the amended statement of claim dated 29 April 2022, the applicants pleadedthat the two decisions made by the Minister were inconsistent with the purpose of theAct in that they failed to provide for the cultural wellbeing of Te Uri o Hikihiki Hapū.[120] During the course of the hearing, this submission was developed to focus onwhat was said to have been a failure to provide for the participation of tangata whenuain the decision-making process generally, or a failure to consult with Te Uri o Hikihiki.Both Mr Anderson and Mr Scott objected to this argument on the basis that it had notbeen specifically pleaded. I accept that submission.[121] I also note that the obligation on the Minister is set out in s 12(1)(b) which isto provide for the input and participation of tangata whenua who have:(i) a non-commercial interest in the stock concerned; or113 See s 8.(ii) an interest in the effects of fishing on the aquatic environment in thearea concerned –and have particular regard to kaitiakitanga.[122] The Minister's position is that the obligation to consult with tangata whenuaset out in s 12 was, in this case, discharged by consultation through the IFF. The roheof Te Uri o Hikihiki falls within the mid-North IFF. Each IFF is encouraged to developan IFF plan that describes how the members exercise kaitiakitanga over the fisheriesof importance to them, but the mid-North IFF has not yet finalised its plan.[123] The applicants acknowledged that, in respect of both decisions, the IFF madesubmissions. In respect of the 2022/23 decision, the Minister noted the concerns oftangata whenua regarding the effects of low abundance of rock lobster. The obligationon the Minister is not to accept whatever submissions tangata whenua make but toconsult with them and consider their submissions.[124] In his affidavit in reply, the second applicant acknowledges that his hapū didnot make a submission in respect of either the 2021/22 or 2022/23 CRA1 TACdecisions, or participate in the IFF meetings in relation to these decisions. He appearsto argue that there was an obligation on the Crown to invite his hapū or him personallyto attend the mid-North IFF meetings. He says that his hapū does not agree with thedecisions reached by the mid-North IFF. He also says that the hapū is not representedby Te Uho Kaimoana (TOKM).[125] In circumstances where the Minister has clearly sought and obtained the inputof both the mid-North IFF and TOKM, and the second applicant did not make anysubmissions about the 2021/22 or 2022/23 decisions, I am not prepared to hold thatthis amounts to a breach of s 12.Remedy[126] Having concluded that the Minister's decisions involved errors of law and aretherefore unlawful, I turn to the question of remedy.[127] As noted at [58] above, the Minister's position was that if the decisions werefound to be unlawful, the appropriate remedy would be to grant declarations which theMinister could consider when reviewing the settings for the CRA1 stock in futureyears.[128] The applicants sought declarations and also an order requiring the Minister toremake the 2022/23 decision in accordance with the declarations.[129] I have found the first four grounds of review established and make declarationsof unlawfulness in relation to both decisions on the basis of those four grounds.[130] The appropriate remedy is a direction that the Minister reconsider the 2022/23decision in accordance with the findings in this judgment and I direct that occurs.Costs[131] I invite the parties to resolve costs themselves but if they are unable to do thatwithin 14 days, the applicants are to file and serve a memorandum on costs. Therespondents are to reply within 14 days from receipt of that memorandum. I will thendeal with the matter on the papers.Churchman JSolicitors:Te Aro Law, Wellington for ApplicantsCrown Law, Wellington for First RespondentChapman Tripp, Wellington for Second Respondent