Supreme Court decision good news for industry

Going fishing is important to Kiwi culture. But why would it be treated as more important than the ability of people to earn a living from working in the seafood industry, or the ability of the public to buy fish to put on the table? Contrary to the recreational sector's persistent claims, Parliament never intended the Fisheries Act to give priority to recreational fishers over commercial interests.

The justification they have used for their position has been expressed in different ways at different times. Those with a historical or legal bent have claimed an inalienable right to fish at common law going back at least to 1215 and the Magna Carta. Those who were around in the late 1980s when the QMS was introduced hark back to the so-called "Moyle promise", made by the third Labour Government when developing a national recreational fisheries policy.

Those with a more current knowledge of the issues have tried to rely upon a particular interpretation of the Act - which the Supreme Court has now roundly rejected.

The case was brought by the Recreational Fishing Council and the Big Game Fishing Council in the form of a judicial review of the kahawai allocations made on the introduction of kahawai into the QMS by the Minister of Fisheries in 2004.

The then Minister fixed the Total Allowable Catch (TAC) on the basis of recent catch history, subject to a proportional reduction of 15% across all sectors to get the harvest down to what he thought was sustainable. The Minister then made a further 10% reduction to the TAC in 2005 and consequential proportional reductions to both the Total Allowable Commercial Catch (TACC) and the recreational allowance.

The respondents in the appeal were Sanford Ltd, Sealord Group Ltd, Pelagic & Tuna New Zealand Ltd, the Minister of Fisheries, and the Chief Executive of the Ministry of Fisheries.

By the time the case reached the Supreme Court, no specific relief was sought by the recreational fishers given the elapse of time since the Ministers' decisions were taken. Instead what was at issue was the clarification of the meaning of the statutory provisions in the Act for setting TAC and TACC in the future.

The High Court had earlier upheld an important claim by the industry parties that the Minister had acted irrationally in failing to reduce recreational daily bag limits in order to implement his decision to reduce recreational allowances by nearly 25% over two years. That finding was not appealed.

In the Supreme Court, the recreational fishing groups alleged that they had a priority in the statutory allocation process and objected to the Minister's use of catch histories as a basis for allocation, saying it was inconsistent with the provision in section 8 of the Act that the Minister should "enable people to provide for their social, economic and cultural wellbeing". Essentially, recreational fishers wanted a smaller total level of harvest in order to increase the biomass, producing over time larger fish and faster catch rates. And naturally - they would prefer that this reduction in the level of harvest came from the commercial sector's allocation.

They argued that the Minister should have made a qualitative as opposed to a quantitative (catch history) assessment when making an allocation that "allowed for" their interests. They also asserted that the requirement in section 21 to allow for their interests before setting the TACC indicates a priority for recreational users.

The majority decision by four of the five judges represented a comprehensive defeat for all these arguments. Key findings are as follows:

  • Providing for people's wellbeing in section 8 is "not of direct relevance when apportioning the Total Allowable Catch between commercial and recreational sectors";

  • As the TAC defines the amount of fish allowed to be caught, the catch is "available in full for utilisation";

  • "The sequential nature of the method of allocation provided for in section 21 does not indicate that non-commercial fishing interests are to be given any substantive priority over commercial interests. In particular, the allowance for recreational interests is to be made keeping commercial interests in mind";

  • "It is unnecessary to consider the existence, nature or scope of (common law rights to fish) as, in relation to the quota management system, it is clear that the Act covers the entire ground that would be occupied by such rights"; and

  • The Minister "makes a policy decision as to what allocations are appropriate" and "has room to make policy choices". As a consequence, if the Minister "is satisfied that the catch history of the parties in previous years provides a reasonable basis for assessment of allocations, it is open to the Minister to take that approach."

While the Chief Justice would have allowed the appeal, her grounds for allowing it were not those put forward by the recreational fishing groups.

The Supreme Court's judgement is a welcome and long-awaited confirmation that no sector has primacy over any other sector in modern fisheries management in New Zealand.

This article first appeared in the July issue of Seafood New Zealand. Bruce Scott is a Partner at Chapman Tripp and represented Sanford, Sealord and Pelagic & Tuna in the Supreme Court. The views expressed in this article are his own.


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Related topics: Litigation & dispute resolution; Fisheries

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