- Recreational and amateur fishers have secured a win
in the Auckland High Court from the Kahawai Legal Challenge
case. Yesterday Justice Rhys Harrison made declarations
that the Minister of Fisheries decisions on entry of the
kahawai species to the quota management system in 2004
and 2005 were unlawful as the Minister of Fisheries had:
- Set total allowable commercial catch for kahawai
without having proper regard to the social, economic
and cultural wellbeing of the people – a mandatory
consideration in the Fisheries Act 1996; and
- Failed to take into account the special considerations
applying to the Hauraki Gulf, due to the Hauraki Gulf
Marine Park Act 2000, when fixing the total allowable
catch within area 1 (covering North Cape to East Cape,
and including the Hauraki Gulf).
The judicial review case was brought by the New Zealand
Recreational Fishing Council Inc and the New Zealand
Big Game Fishing Council. Both recreational fishing
councils lodged the proceedings as a test case.
The case is the first legal proceedings by amateur and
recreational fishing interests since the introduction
of the quota management scheme.
The High Court has directed the Minister to reconsider
or review his 2005 decisions to take account of the
Court's decision. This will require fresh decision-making
before the start of the new fishing year in October
interests "the starting point" before any allowance
for commercial fishing interests.
- Setting a TACC (total allowable commercial catch) is
a mechanism in the Fisheries Act for allocating the use
of the total allowable catch between commercial and non-commercial
interests after sustainable levels have been set.
Setting the TACC "divides the pie" between commercial
and non-commercial interests.
- In finding that the Minister did not correctly set the
TACC, the Court has found that the Minister did not properly
apply the criterion in the fisheries legislation of enabling
people "to provide for their social, economic and
cultural wellbeing". The Court described this
as a "mandatory consideration" when allowing
for recreational interests in the fish stocks.
The Court said [para 55] that:
allowance for recreational interests reflected in
the level of a TACC should appropriately recognise
the extent to which kahawai provides for their [peoples']
wellbeing. In this context 'wellbeing' must
mean the state of people's health or physical welfare.
People provide for their wellbeing either by
catching kahawai or by purchasing it from retail outlets".
- In assessing the people's "wellbeing" objective,
the Court said [para 59] that a number of factors apply
to kahawai, including:
fishers progressive loss of access to other, more
highly prized inshore species, principally snapper;
minimal value to people other than recreational
fishers, as reflected in its small retail market;
- The recreational fishers well settled common law
right to fish and provide for his or her needs.
and levels of recreational catch history.
- The Court found that there was no evidence that either
the Ministery of Fisheries (MFish) or the Minister followed
the necessary process of evaluating or taking into account
both quantitative and qualitative aspects of peoples'
wellbeing when setting the TACCs and the recreational
and customary Maori allowances. [see para 62]
- The Court found that the Minister of Fisheries gave
almost complete reliance to MFish advice [para 25].
The error by the Minister resulted from incorrect advice
from MFish which placed an over-reliance on allocating
fish stocks based on catch history, rather than making
a wider assessment of whether the allocation addresses
the statutory criteria of weighing up the social, economic
and cultural wellbeing of people [para's 67-74].
considerations in the Hauraki Gulf
- The Court has held that "the Hauraki Gulf requires
special consideration whenever a sustainability measure
is proposed or implementedů. " [para 82].
The Court found the Minister's failure to carry this out
constituted a material error of law. The Minister
had an obligation to pay particular regard to the social,
economic, recreational and cultural wellbeing of the people
of the Hauraki Gulf and in particular to maintain and
enhance its physical resources in the form of kahawai
stock [para 81]. The Court found that the Ministry's
advice to the Minister made some reference to the special
provisions of the Hauraki Gulf Marine Park Act 2000, but
the Court found these fell short of satisfying the Minister's
statutory obligations [para 81].
- The commercial fishers represented by Sanford Limited,
Sealord Group Limited and Pelagic & Tuna New Zealand
Limited mounted a robust counterclaim against the Minister's
kahawai decisions in 2004 and 2005. The High Court
for the most part rejected the counterclaim but upheld
the commercials claim that the Minister of Fisheries failed
to properly consider advice from MFish to review recreational
bag catch limits for kahawai in late 2004.
- The Court declined to make any declarations requiring
the Minister of Fisheries to put in place regulatory measures
to control or licence recreational fisheries (as the commercial's
argued) saying that the Court had no jurisdiction to make
such orders [para 140].
- The Court had made declarations that the Ministers decisions
in 2004 and 2005 were unlawful to the extent that the
- Fixed the TACCs for kahawai for all areas without
having proper regard to the social, economic and cultural
wellbeing of the people;
- Failed to take any or proper account of the Hauraki
Gulf Marine Park 2000 when fixing the TAC for kahawai
for area 1;
- The Court also upheld part of the commercial fishers
counterclaim that the Minster failed, without giving
any or proper reasons, to consider advice from MFish
to review bag catch limits for recreational fishers.
The Court has reserved leave
to the parties for further apply to the Court for further
relief if necessary. Justice Harrison also ruled
that the current kahawai management regime should remain
in place until the Minister makes a fresh and legally
effective decision for the new fisheries year commencing
on 1 October 2007.
- The Court has (provisionally) indicated that recreational
fishers are entitled to costs against the Minister of
Fisheries and reasonable disbursements, and that costs
should lie where they fall on the commercial fishers counterclaim,
which was largely dismissed.
the High Court decision affect other fish stocks?
- The Court's decision will be a helpful precedent which
will apply to other fish species. However the Court
has said that individual assessment of each fish stock
is required. The Judge said that the availability
and value of a particular species will be a material factor
in each case, and that the approach to setting TACCs and
allowances will differ amongst species with the results
dependant upon the Ministers evaluation of all relevant
factors [para 73]. In saying this the Judgment
reinforces that the MFish default approach of allocation
simply based on existing catch history is not an adequate
approach to allowing for recreational fishing interests
under the fisheries legislation. The Court has
confirmed that the Hauraki Gulf requires special consideration
by virtue of the Hauraki Gulf Marine Park Act 2000.
This finding will apply to all fish stock species within
the waters of the Hauraki Gulf.
response from recreational fishers representatives
- The Court proceedings were brought by two fishing councils,
New Zealand Recreational Fishing Council Inc and New Zealand
Big Game Fishing Council Inc and supported by option4,
a non-commercial fishers lobby group whose support for
the proceedings included fund raising from the public.
- Paul Barnes, option4 spokesperson has expressed delight
with the decision. Paul Barnes said that he was
especially pleased to see that the Court has recognised
that recreational fishing rights stem from ancient common
law rights, and that these rights have particular value
in New Zealand given the popularity of fishing.
He was also pleased that the Court had recognised providing
for peoples' wellbeing takes priority over the Ministry's
policies of proportionality and catch history.
Mr Barnes noted that the Minister has been told that allocating
fisheries should allow for all values, not just monetary
- Keith Ingram the President of New Zealand Fishing Council
said that in the past the recreational fishing community
has been fitted into the left-overs of a commercially
managed fishery. This fundamentally flawed situation
has led to this test case which has confirmed that making
proper provision for non-commercial fishing interests
is the "starting point" before there is any
allowance for commercial fishers. Mr Ingram said
that after 20 years of the quota management scheme there
was a real need for case law which acknowledged the right
of the public of New Zealand to fish for food or fun.
- Richard Baker, vice-president of the New Zealand Big
Game Fishing Council said that the Court proceedings have
been a huge commitment by a group of amateur fishers who
have been trying to get better definition of the public's
right to fish, and to get a re-build in many fish stocks.
Mr Baker said that he was especially appreciative
of the fishing clubs and the option4 group who had committed
financial resources to the cause, to the Ngapuhi iwi who
supported the proceedings, and to the many individuals
who have contributed substantial time and effort in preparing
the case and by fund raising behind-the-scenes.
further information contact:
Zealand Big Game Fishing Council Inc
(021 573 474) or Richard Baker (021 869 889)
(09 818 2146) or Scott Macindoe (027 450 6065)
- Te Runanga
A Iwi O Ngapuhi
Sonny Tau (09