Reay v The Minister of Conservation

JurisdictionNew Zealand
JudgeFrench J
Judgment Date25 September 2015
Neutral Citation[2015] NZCA 461
Docket NumberCA481/2014
CourtCourt of Appeal
Date25 September 2015
Between
Bruce Reay
Appellant
and
The Minister of Conservation
Respondent

[2015] NZCA 461

Court:

Randerson, French and Winkelmann JJ

CA481/2014

IN THE COURT OF APPEAL OF NEW ZEALAND

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.

Counsel:

C S Withnall QC and S J Grey for Appellant

A Boadita-Cormican and S J Ritchie for Respondent

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 dispute then arose as to whether in light of his quota a concession was still required to enable him to continue commercial eel fishing in conservation areas within ANG16. DOC maintained a concession was still required, notwithstanding the allocation of the quota. Mr Reay maintained to the contrary.

9

In 2008 DOC declined Mr Reay's application in respect of the Westland conservancy but following a review in 2009 a five year concession to access and fish the area between the Waiho River and Bruce Bay in South Westland and the lower Cascade River was granted. The concession did not cover all of the waterways Mr Reay wanted included. He made further submissions and in November 2009 the

concession was amended by the inclusion of additional rivers and creeks. There were, however, still some waterways excluded
10

In March 2011 DOC declined Mr Reay's application for a concession to undertake commercial eel fishing in certain areas in the Southland conservancy. It did, however, grant him a concession for access, boating and camping activities on the Pyke River marginal strip so as to facilitate commercial eel fishing on adjacent non-conservation land. 5

11

In all of these various decisions made by DOC affecting Mr Reay, the decision makers took into account the sustainability of the eel population and effects on its habitat and associated ecosystems. Thus, in a December 2010 report considering Mr Reay's Southland application, the report writer stated that large eels were vulnerable and wrote:

Although it is possible to hypothesise on the possible effects of the application on the structure and functioning of the freshwater ecosystems in the proposed fishing areas, it is not possible to accurately assess or quantify those potential effects. The actual effects on freshwater ecosystems would vary from site to site depending on the community structure, and would most likely change over time due to the cumulative effects of repeated harvesting. It is therefore considered that there is insufficient information available to enable the effects of the application on freshwater ecosystems to be adequately assessed.

Issue one: In considering Mr Reay's application for a concession under the Conservation Act 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?

Arguments on appeal
12

In the High Court Mr Reay's counsel Mr Withnall QC contended that the Fisheries Act established a code for the regulation of commercial fishing and therefore the concession regime under the Conservation Act did not apply to Mr Reay. This argument was rejected by Panckhurst J. The Judge held the fishing and concession regimes operate in parallel to regulate different aspects of the activity of fishing.

13

On appeal to this Court Mr Withnall told us he was no longer pursuing the jurisdictional point. It was accepted DOC could lawfully require Mr Reay to obtain a concession to fish in waterways on DOC land, notwithstanding he was a holder of quota. Instead, what Mr Withnall submitted was that in deciding whether to grant or decline Mr Reay's application for a concession, DOC was not entitled to take into account the 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. In particular, it was not entitled to take into account the sustainability of the eel population and the environmental and ecological effects of commercial eel fishing. All it could take into account were matters such as the effects of the operation on the fauna and flora (other than fish) and the effects on the land.

14

Mr Withnall advanced the following arguments:

  • (a) Since 1908 there has been a long-standing legislative history of all aspects of fishing being exclusively controlled by fisheries legislation. In contrast, DOC and the Conservation Act are relative latecomers, only coming into existence in 1987.

  • (b) The current Fisheries Act contains a comprehensive regime specifically regulating commercial fishing. In accordance with the principle that the specific prevails over the general, the Conservation Act should be read subject to the Fisheries Act.

  • (c) The process of determining the total allowable catch and the total allowable commercial catch under the Fisheries Act is a rigorous and all-inclusive one. It requires the Minister of Fisheries to undertake wide consultation and to have regard to all possible factors including social, cultural, economic, as well as environmental considerations. 6 Crucially, it includes factors such as the maintenance of species above a level that ensures its long term viability, biological diversity of the

    aquatic environment and protection of habitat of particular significance for fisheries management. 7
  • (d) Parliament cannot have intended that once this process had been completed, rights allocated and...

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