In the Court’s opinion, ultimate discretion rests with the Minister as to the level of total allowable catch (TAC) and how he apportions the catching rights.
When setting the TAC, the Minster may choose to maintain stock size above the level that can produce maximum sustainable yield. For most fisheries, management at a level above MSY equals greater numbers and larger, older fish.
This means the Minister has the flexibility to leave more fish in the water.
Both the minority and majority decisions of the Court were clear that the TAC must be set first, and is concerned with ensuring sustainability of the fisheries resource.
When setting the TACC, the Minister may also decide to favour non-commercial interests when setting allowances, but in doing so, he must keep commercial interests in mind.
The Court did not agree with arguments from non-commercial fishers, that the utilisation aspect of the purpose – the need to manage fisheries sustainably to enable people to provide for their social, economic and cultural well-being - expressly guides all decision-making under the Act.
However, an assessment of the ‘three well-beings’ would seem to be necessary if the Minister was to be properly informed. In this regard the majority decision also held that “the notion of people providing for their wellbeing, and in particular their social wellbeing, is an important element of recreational interests”.