Reay v The Minister of Conservation

JurisdictionNew Zealand
CourtCourt of Appeal
JudgeFrench J
Judgment Date25 Sep 2015
Neutral Citation[2015] NZCA 461
Docket NumberCA481/2014

[2015] NZCA 461

IN THE COURT OF APPEAL OF NEW ZEALAND

Court:

Randerson, French and Winkelmann JJ

CA481/2014

Between
Bruce Reay
Appellant
and
The Minister of Conservation
Respondent
Counsel:

C S Withnall QC and S J Grey for Appellant

A Boadita-Cormican and S J Ritchie for Respondent

Appeal against a decision of the High Court declining to make declarations on judicial review — the appellant was a commercial eel fisher — he held a commercial fishing permit under the Fisheries Act 1996 and was also a holder of quota in Quota Management Area for freshwater eels — he sought further concessions from the respondent Department of conservation for the undertaking of eeling on conservation land — whether in considering the appellant's application for a concession under the Conservation Act 1987 the respondent was not entitled to take into account those effects on the fishery that had already been considered by the Minister of Fisheries in setting the quota management area and total allowable commercial catch — whether in particular the respondent was precluded from considering the possible effects of commercial fishing on the eel population and associated ecosystems in those waters — whether the appellant required a concession under the CA to cross marginal strips to gain access to waterways not in conservation areas for the purpose of commercial eeling.

Held: The concession regime under the Conservation Act was set out in Pt 3B CA. Part 3B was expressed to apply to “every conservation area”. Significantly, s17O(2) stated in absolute and unequivocal terms that no activity was to be carried out in a conservation area unless authorised by a concession. Commercial eel fishing was an activity for the purposes of the CA. Commercial fishing or the holders of quota are not mentioned in the list of exceptions contained in subsections 17O(3) and (4). If commercial fishing was intended to be excluded from the concession regime, that would have been a very significant exclusion warranting express words.

[In terms of whether DOC was entitled to take the sustainability of the eel population into account, the starting point had to be the purpose of the two pieces of legislation and the statutory functions of the respective Ministries. Section 6 CA (functions of Department) defined the functions of DOC as including managing for conservation purposes all land and other natural resources under its administration, as well as preserving as far as practicable all indigenous freshwater fisheries and freshwater fish habitats. “Conservation” was defined as “the preservation and protection of natural and historic resources for the purpose of maintaining their intrinsic values and safeguarding the options of future generations.

In the absence of any express exclusion, it was difficult to see how a government department tasked with those functions and required by s17U CA (conservation areas to be managed by Department) to consider “the effects” of an activity could be precluded from considering the effects of a commercial fishing operation on the sustainability of the relevant fish population and its habitat. Section 17U(2) CA stated the Minister could decline a concession application if the Minister considered the information available was insufficient or inadequate to enable them to assess the effects. Section 17U(2) also marked an important point of difference between the FA and the CA. There was no equivalent provision in the FA. The regime under the FA was proactive and the regime under the CA more cautionary.

If Parliament intended to exempt the quota system under the Fisheries Act 1983, then the1996 FA replacement quota system would have been exempted. It could not safely be assumed the exclusion from pt 5B CA of fish taken or sold under the authority of the 1983 Act was intended to mean the taking and sale of freshwater fish under the 1996 FA. Section 26ZG(2)(c) CA (application of part – does not apply to the Fisheries Act 1983) said that aspects of the fisheries legislation prevailed over pt 5B CA, which was about recreational fishing. Section 26ZG(2)(c) CA had not purported to oust other provisions of the CA, including pt 3B, the concessions regime, the purpose of which was to regulate commercial activity on DOC land.

The consideration of fishing stocks by DOC did not create a necessary conflict with the FA 1996 or undermine the decision making of the Minister of Fisheries. In setting a quota management area and total allowable catch, the assessment undertaken by the Minister of Fisheries was of necessity a global one. The FA did not address access to land and the quantities to be taken from any particular water body within the quota management area. In contrast, the focus of DOC when exercising its concession function was site-specific with a mandate that covered the full range of natural resources. It considered the effect of the proposed activity on the particular water body and land in respect of which a concession was being sought. In this regard, DOC was doing no more than exercising the right of any landowner. Any rights conferred on commercial fishers under the FA 1996 must still be subject to the rights of a landowner on whose land a water body was situated. The sustainability of the species was a valid concern for DOC

In considering R's application for a concession under the CA to take eels from waters over or adjacent to lands administered under the CA, the respondent had been entitled to take into account the possible effects of commercial fishing on the eel population and associated ecosystems in those waters.

Section 17O(2) CA required that activities in a conservation area be authorised by a concession. “Activity” was defined in s2 CA (interpretation) as including a trade, business or occupation. The preparatory conduct that was to take place on the marginal strip such as accessing the water way, camping, storing of equipment, and launching of a boat had to be an integral part of the activity of commercial fishing and so was caught by s17O(2) CA. The legislature could never have intended a commercial operation should be broken down into its component parts and some parts treated as an activity for the purposes of s17O CA and others not. That would be artificial and unworkable in practice. Section 24C CA (purpose of marginal strips) contemplated public access to marginal strips for recreational purposes. R had been required to obtain a concession for the marginal strip.

Appeal dismissed.

JUDGMENT OF THE COURT

A The appeal is dismissed.

B The appellant must pay the respondent costs for a standard appeal on a band A basis with usual disbursements.

REASONS OF THE COURT

(Given by French J)

Introduction
1

Mr Reay is a commercial eel fisher. He holds a commercial fishing permit under the Fisheries Act 1996 and is also a holder of quota in Quota Management Area ANG16, which applies to South Island freshwater eels.

2

In 2000 a dispute arose between Mr Reay and the Department of Conservation (DOC) over applications he had made for concessions to fish in water bodies on land under DOC's control. Mr Reay issued judicial review proceedings in the High Court against the Minister of Conservation, seeking various declarations. The case was heard by Panckhurst J. The Judge found in favour of Mr Reay on three of his grounds for judicial review. 1 Mr Reay now wishes to appeal two aspects of the Judge's decision that were adverse to him and in respect of which he says he is entitled to a declaration that DOC acted unlawfully.

3

The two issues raised by the appeal are:

  • (a) In considering Mr Reay's application for a concession under the Conservation Act 1987 to take eels from waters over or adjacent to lands administered under the Conservation Act, was the Minister of Conservation entitled to take into account the possible effects of commercial fishing on the eel population and associated ecosystems in those waters?

  • (b) Does Mr Reay require a concession under the Conservation Act to cross marginal strips to gain access to waterways not in conservation areas for the purpose of commercial eeling?

Factual background
4

Mr Reay has been a self-employed commercial eel fisher operating on the West Coast of the South Island since 1979.

5

In 1987 most of the land adjoining the waterways he traditionally fished and some of the beds of those waterways were brought under the management of DOC. In October 1998 DOC advised Mr Reay that if he wished to continue fishing in the conservation areas, he was required to obtain a concession under the Conservation

Act. Mr Reay duly submitted applications for concessions in respect of the West Coast conservancy and the Southland conservancy. 2
6

In October 2000 the eel fishery was made subject to the quota management system under pt 4 of the Fisheries Act. The purpose of the quota management system is to ensure sustainable utilisation of fisheries resources by controlling harvest levels for different species in nominated geographical areas. On introduction of a species into the Quota Management System, quota management areas are established and a total allowable commercial catch set for each area. 3 Except in limited circumstances, the boundaries of the quota management areas can only be amended by statute. 4 The total allowable commercial catch is divided into a number of individual transferable quotas. The individual quotas are effectively rights to fish a defined portion of the total allowable catch for the relevant area.

7

Based on his catch history, Mr Reay was allocated an individual transferable quota of 5.058 tonnes of freshwater eels per annum in the quota management area designated as ANG16. ANG16 covers an area commencing in the north of the South Island near Kahurangi Point and running down the West Coast to a point south of Haast.

8

At the time the quota was allocated, DOC had still not processed Mr Reay's applications for a concession. A...

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