SUMMARY
The Supreme Court overturned the Minister for Oceans and Fisheries’ decision on Total Allowable Catch (“TAC”) for the East Coast tarakihi fishery (“East Coast Fishery”), despite Seafood New Zealand succeeding on one ground of appeal. The key issues were whether the Minister’s decision could consider social, cultural, and economic factors (“SCE factors”), and what probability of rebuild success the Minister could choose.
BACKGROUND
Under the Fisheries Act 1996, the Minister for Oceans and Fisheries has a duty to review the TAC of New Zealand’s various fisheries to enable sustainable utilization. In 2019, the then-Minister Stuart Nash, reviewed the TAC of the East Coast Fishery. The stock had fallen below a level that could produce the maximum sustainable yield (“MSY”) and so the Minister was obliged to set a TAC that would allow the stock to recover.
The Minister had already reduced the TAC for the East Coast Fishery a few times and indicated he would revisit it in another year’s time, with further reductions if the fishing industry did not meet their own plan to rebuild fishing stocks within a 20 year timeframe. In his decision on the TAC he recorded that it reflected the economic impact on fishers, their families, and regional communities.
Under section 13(2)(b), the Minister must set a TAC that enables recovery in a “way and rate” that “will” result in the stock being restored, and within a “period appropriate to the stock”, having regard to the biological characteristics of the stock and environmental conditions (“scientific factors”). A mandatory part of this decision is the probability of success of rebuilding the stock. Section13(3) also requires the Minister to have regard to SCE factors when determining the way and rate of the TAC.
The Royal Forest & Bird Protection Society of New Zealand (“Forest & Bird”) challenged the Minister’s decision on the TAC on the grounds that he should only have regard to the scientific considerations based on the best available information, and should not have considered SCE factors. The best available information (the Harvest Strategy Guidelines (“HSS”) and Operating Guidelines (“OG”)) recommended a probability of success of 70%, which Forest & Bird claimed was a mandatory relevant consideration. The Minister adopted an implicit probability of 50%, and had not considered a 70% probability of success.
The High Court determined that SCE factors can only influence the Minister’s decision-making after an “appropriate” period is fixed according to scientific considerations only. It held that the Minister therefore erred by considering SCE factors while determining an “appropriate” period. The High Court agreed with Forest & Bird that the HSS and OG was the best available information and a 70% probability was a mandatory relevant consideration.
The Court of Appeal, by majority, dismissed an appeal by Seafood NZ against the High Court’s decision. It found that the “period appropriate to the stock” set a maximum period that must be fixed by reference to scientific considerations, and only insofar as the HSS included SCE factors in its scientific consideration, could the Minister consider them. It also held by majority that the HSS did specify a default 70% probability of success, and that the Minister was required to consider it.
Seafood NZ further appealed to the Supreme Court.
THECASE
What could the Minister consider when setting a “period appropriate to the stock”?
Seafood NZ submitted that the “appropriate” period for the stock rebuild was to be determined alongside the “way and rate” as a single decision, incorporating scientific and SCE factors. Seafood NZ’s counsel accepted there would be an evaluative step where the Minister assessed the appropriateness of the period with sole regard to the scientific factors, but maintained that this was only a relevant consideration and not a control on the TAC.
The Minister submitted that section13(2)(b)(ii) was a cross-check on the period that results from the “way and rate” analysis. They submitted that the legislation does not compel adoption of the “most appropriate” period to the stock, but that there could be a range of “appropriate” periods with regard to the scientific factors. Where the range of periods are “appropriate to the stock”, the Minister may take the SCE factors into account when choosing among them.
Forest & Bird submitted that the Minister erred by doubling a previous period he had considered “appropriate”, by reference to SCE factors, which they said were legally irrelevant. Rather, they claimed the Minister should have determined the “appropriate” period only by reference to the scientific factors affecting the stock. They accepted that there may be a range of periods that the Minister could then choose from.
The Supreme Court held both subsections (i) and (ii), providing for the “way and rate” and the “period appropriate to the stock”, were intended to constrain the TAC that the Minister could adopt. They acted as a sustainability check. In determining the “appropriate” periods, the Minister’s decision concerns the stock of the East Coast Fishery, not those who have an interest in the stock. Only scientific factors could be considered in determining an “appropriate” period for the East Coast Fishery stock.
The Court held that the Minister does get discretion insofar as the TAC is set within an “appropriate” period as determined by scientific factors. Section 13(2)(b)(ii) uses the indefinite article “a” in “a period appropriate to the stock”. As long as the TAC is determined with a scientifically “appropriate” period, the Minister could then consider SCE factors in setting the way and rate.
An implied default 70% chance of success?
The Supreme Court found that to satisfy the Act’s requirement for the stock to be restored, the Minister was only required to set a TAC that had at least a 50% chance of success. The 70% probability of success was not a mandatory relevant consideration beyond the required minimum. The HSS and OG, which had the recommended 70% probability of success, also had the assumption that the TAC would not be revisited before the expiry of their build period. The Minister had already adopted a policy in 2018 of reviewing progress and adjusting the TAC as necessary, and so the HSS and OG were outdated at the time of his 2019 decision. They were therefore not the “best available information” and not mandatory relevant considerations for the Minister. On this point Seafood NZ succeeded.
Conclusion
Seafood NZ did not succeed in relegating the “appropriate” recovery period to a “mere mandatory relevant consideration” for the Minister in setting the TAC. Section 13(2)(b)(ii) is a limit on the Minister’s discretion. What periods are “appropriate to the stock” can also only be determined by reference solely to the scientific factors relating to the fish stock; on this Forest & Bird succeeded. However, so long as the Minister sets a TAC within an “appropriate” period, they may take social, cultural, and economic considerations into account when setting the way and rate of the TAC.
Finally, the Minister was not required to consider a default probability of success of 70%, as the information containing this assumption was out of date and therefore not the “best available information”.
RESULT
While the Supreme Court partially allowed Seafood NZ’s appeal, the Minister’s decision was still unlawful as he had considered SCE factors when assessing a rebuild period “appropriate to the stock”. The Minister was required to remake the decision.
The Minister must separate the assessment of the “appropriate” period (and only consider scientific factors) and the “way and rate” analysis (which can include the SCE factors). Owing to the partial success of Seafood NZ’s appeal, the Minister also need only set a TAC with at least a 50% chance for a successful stock rebuild.
For further information on this case or related issues please contact Director Brigitte Morten
