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Reay v Minister of Conservation [2015] NZCA 461 (25 September 2015)

Last Updated: 30 September 2015

IN THE COURT OF APPEAL OF NEW ZEALAND
BETWEEN
 Appellant
AND
 Respondent
Hearing:
2 September 2015
Court:
Randerson, French and Winkelmann JJ
Counsel:
C S Withnall QC and S J Grey for Appellant A Boadita-Cormican and S J Ritchie for Respondent
Judgment:


JUDGMENT OF THE COURT

  1. The appeal is dismissed.
  2. 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:

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 nonconservation 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:

Our analysis

[15] As will be apparent, some of the submissions made by Mr Withnall were not directed to an issue about the factors to be taken into account but rather to the wider issue that commercial fishing is entirely outside the purview of DOC. But, as mentioned, that wider argument was abandoned on appeal. It was accepted commercial fishing is not the sole preserve of the Fisheries Act and that DOC does have some ability to exercise control over commercial fishing in conservation areas through the concession regime. In our view, the argument was rightly abandoned.
[16] The concession regime under the Conservation Act is set out in pt 3B of the Act. Part 3B is expressed to apply to “every conservation area”.[10] Significantly, s 17O(2) states in absolute and unequivocal terms:

Except as provided in subsection (3) or subsection (4), no activity shall be carried out in a conservation area unless authorised by a concession.

[17] It is common ground that commercial eel fishing is an activity for the purposes of the Act. It is also common ground that commercial fishing or the holders of quota are not mentioned in the list of exceptions contained in subsections (3) and (4). In our view, if commercial fishing was intended to be excluded from the concession regime, that would have been a very significant exclusion warranting express words. There are none.
[18] Turning then to the live issue of whether DOC was entitled to take the sustainability of the eel population into account, the starting point must be the purpose of the two pieces of legislation and the statutory functions of the respective Ministries.
[19] In the High Court Panckhurst J held each Ministry was required to consider and assess the eel population but in a different context and for a different purpose. The Judge pointed out that the purpose of the Fisheries Act is to provide for the utilisation of fisheries resources while ensuring sustainability, whereas DOC has a preservation and protective function.[11] We agree with that analysis.
[20] Section 6 of the Conservation Act defines the functions of DOC. Significantly for present purposes, they include 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” is 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”.[12]
[21] In the absence of any express exclusion, it is difficult to see how a government department tasked with those functions and required by s 17U of the Conservation Act to consider “the effects”[13] 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.
[22] Also significant in our view is s 17U(2) of the Conservation Act, which states the Minister of Conservation may decline a concession application if the Minister considers the information available is insufficient or inadequate to enable him or her to assess the effects. One of Mr Withnall’s criticisms of DOC’s approach in this case was that it relied on the absence of evidence to justify its decisions. Yet that is exactly what s 17U(2) authorises. Section 17U(2) also marks an important point of difference between the Fisheries Act and the Conservation Act. There is no equivalent provision in the Fisheries Act. The closest is s 10, which provides that anyone exercising powers under the Fisheries Act in relation to the utilisation of fisheries resources and ensuring sustainability shall base decisions on the best available information and exercise caution when information is uncertain, unreliable or inadequate. However, the section also provides that the absence of information or uncertainty may not be used as a reason to postpone taking any measures designed to achieve the purposes of the Fisheries Act.
[23] The difference between the two provisions highlights, as Panckhurst J put it, that the regime under the Fisheries Act is proactive and the regime under the Conservation Act more cautionary.
[24] In arguing to the contrary, Mr Withnall relied heavily on inferences to be drawn from the existence and content of pts 5A and 5B of the Conservation Act.
[25] Parts 5A and 5B were enacted in 1990 when Parliament decided to transfer the management of acclimatised or sports fish and other freshwater fisheries from the Fisheries Act 1983 to the Conservation Act.[14] Part 5A concerns Sports Fish and Game Councils. Part 5B concerns Freshwater Fisheries.
[26] Mr Withnall submitted the enactment of pts 5A and 5B showed an intention to cut across the concessions regime in pt 3B. In advancing that submission, he relied in particular on a provision in pt 5B: s 26ZG. In its current form, s 26ZG states:

26ZG Application of Part

(1) Subject to subsection (2), this Part shall apply only in relation to freshwater fisheries.

(2) Nothing in this Part shall apply to—

(a) any person using a landing net to secure freshwater fish lawfully taken with a rod and line; or

(b) any person who, having unintentionally taken any freshwater fish contrary to the provisions of this Act or any regulations made under it, immediately returns the fish with as little injury as possible, to the water; or

(c) the taking, holding, possession, sale, or disposal of freshwater fish under the authority of—

(i) the Fisheries Act 1983, the Marine Farming Act 1971, or any regulations made under either of those Acts; or

(ii) the registration of a fish farmer under Part 9A of the Fisheries Act 1996.

(3) To avoid doubt, subsection (2) does not limit or affect section 26ZI or section 26ZM.

[27] The focus of the argument was on subs 2(c)(i), which states that nothing in pt 5B shall apply to the taking and sale of freshwater fish under the authority of the Fisheries Act 1983. As at 1990, the Fisheries Act 1983 authorised the taking of freshwater fish under various regimes including under a quota management system.
[28] Mr Withnall acknowledged that under subs 2 the only aspect of the Fisheries Act 1996 that is expressly exempted from pt 5B is the taking or sale of fish under the authority of the registration of a fish farmer. There is no reference to permits or quotas. However, Mr Withnall submitted the reference to the Fisheries Act 1983 in subs (2)(c)(i) should be read as referring to the Fisheries Act 1996 in accordance with the standard principle of statutory interpretation that a reference to a repealed Act should be read as a reference to its replacement.[15] The Fisheries Act 1983 used to regulate commercial fishing and was replaced by the 1996 Act. He also argued it is significant that s 26ZG makes it clear the transfer of control of the freshwater fishery is limited to the recreational fishery. In his submission, it followed that the commercial fishery was carved out and left for the Minister of Fisheries.
[29] This latter point comes perilously close to an argument that DOC has no control at all over commercial fishing in the conservation estate, a proposition that, as already mentioned, Mr Withnall had abandoned. However, we take the argument to be that the existence of pt 5B is another pointer that DOC is to have a much more limited role when it comes to commercial fishing and must not duplicate inquiries already made by the Minister of Fisheries.
[30] Section 22(2) of the Interpretation Act 1999 creates a presumption that reference to an enactment that has been repealed is taken to be a reference to the enactment that replaces it. In our view, it is not clear-cut whether in context the presumption does apply in this case, as submitted by Mr Withnall, or whether the reference to “1983” was deliberate. On the one hand, if Parliament intended to exempt the quota system under the Fisheries Act 1983, then why was the 1996 replacement quota system not exempted? On the other hand, the history of s 26ZG suggests the reference to the two Acts in subs 2(c) is deliberate. Subsection (c)(ii) with its reference to the 1996 Act was not enacted at the same time as subs (c)(i). It was enacted eight years later in 2004 at the same time as a new pt 9A dealing with registration of fish farmers. The reference to the 1983 Act was left unchanged. In our view, in these circumstances, it cannot safely be assumed the exclusion from pt 5B 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 Act.
[31] The point was not fully argued and in any event it is unnecessary for us to reach any concluded view because even if Mr Withnall were correct and “1983” should be read as “1996”, it does not assist his case. All that s 26ZG(2)(c) says is that aspects of the fisheries legislation prevail over pt 5B, which is about recreational fishing. Section 26ZG(2)(c) does not purport to oust other provisions of the Conservation Act, including pt 3B, the concessions regime, the purpose of which is to regulate commercial activity on DOC land.[16] Part 5B was necessary to give DOC better control over the non-commercial recreational fisher.
[32] In short, in our view, s 26ZG is not reasonably capable of being interpreted as limiting the reach of the concessions regime in the way suggested. We consider that rather than reducing DOC’s powers, the enactment of pts 5A and 5B was intended to enlarge them. The concession regime and pts 5A and 5B perform distinct functions.
[33] Nor do we accept that consideration of fishing stocks by DOC creates a necessary conflict with the Fisheries Act or undermines the decision making of the Minister of Fisheries. It is, in our view, important to bear in mind that in setting a quota management area and total allowable catch, the assessment undertaken by the Minister of Fisheries is of necessity a global one. The Fisheries Act does 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 is very much site-specific with a mandate that covers the full range of natural resources. It considers the effect of the proposed activity on the particular water body and land in respect of which a concession is being sought. In this regard, DOC is doing no more than exercising the right of any landowner. Any rights conferred on commercial fishers under the Fisheries Act must still be subject to the rights of a landowner on whose land a water body is situated.
[34] Mr Withnall sought to counter this argument by drawing a distinction between land owned privately and land owned by the Crown. He submitted DOC was in a different category to a private landowner because DOC was the Crown and it was the Crown that granted the permit in the first place. The granting of the permit under pt 6 of the Fisheries Act 1996 must, he argued, carry with it the inference that access to water on Crown land is available and authorised without more.
[35] We do not accept that submission. It involves reading words into pt 6 that are simply not there. Further, if Mr Withnall were correct, it would mean there is no legal impediment to individual water bodies in conservation areas being completely fished out. That is something Parliament is most unlikely to have intended. It can be no answer to say that self-interest would prevent commercial fishermen doing that or that Mr Reay is a responsible fisher.
[36] For the reasons traversed above, we agree with Panckhurst J that the sustainability of the species was a valid concern for DOC. We conclude the answer to issue one is “yes”. 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, the Minister of Conservation was entitled to take into account the possible effects of commercial fishing on the eel population and associated ecosystems in those waters.

Issue two: Does Mr Reay require a concession under the Conservation Act to cross marginal strips to gain access to water bodies not in conservation areas for the purpose of commercial eeling?

[37] This issue requires consideration of ss 17O and 24C of the Conservation Act.
[38] Section 17O(2) states that no activity shall be carried out in a conservation area unless authorised by a concession. “Activity” is defined in s 2 as including a trade, business or occupation.
[39] Mr Withnall submitted a person does not carry on an activity within the meaning of that definition simply by passing over DOC land to enter an adjoining waterway not in DOC land. It followed, in his submission, that no concession was required.
[40] We do not accept that argument. The formal concession document that was issued does not expressly state the purpose for which it was sought and granted. But it was undeniably for the purpose of commercial eel fishing. Were it not for his commercial eeling operation, Mr Reay would not need to access the Pyke River marginal strip. In our view, the preparatory conduct that is to take place on the marginal strip such as accessing the water way, camping, storing of equipment, and launching of a boat must be an integral part of the activity of commercial fishing and so caught by s 17O(2). 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 s 17O and others not. That would be artificial in the extreme and unworkable in practice.
[41] Mr Withnall’s alternative submission was that even if Mr Reay’s use of the marginal strip amounted to an activity, it was an authorised activity by virtue of s 24C(b). Section 24C(b) states that one of the purposes of marginal strips is to enable public access to any adjacent watercourses or bodies of water.
[42] The full text of s 24C is as follows:

24C Purposes of marginal strips

Subject to this Act and any other Act, all marginal strips shall be held under this Act—

(a) for conservation purposes, in particular—

(i) the maintenance of adjacent watercourses or bodies of water; and

(ii) the maintenance of water quality; and

(iii) the maintenance of aquatic life and the control of harmful species of aquatic life; and

(iv) the protection of the marginal strips and their natural values; and

(b) to enable public access to any adjacent watercourses or bodies of water; and

(c) for public recreational use of the marginal strips and adjacent watercourses or bodies of water.

[43] In our view, the public access contemplated by s 24C(b) is access for recreational purposes. That is supported by the reference in s 24C(c) to “public recreational use”. Mr Withnall’s interpretation involves reading s 24C(b) as meaning public access for any purpose, which would render s 24C(c) pointless.
[44] Further support for the construction we prefer is to be found in s 17O(1), which states pt 3B (the part concerning concessions) applies to every conservation area. A marginal strip is a conservation area. There is no exclusion of marginal strips. Section 17O is not expressed to be subject to s 24C, whereas s 24C is expressed to be “subject to this Act”. We also derive support for our interpretation from the existence of s 17V, which deals with concessions over marginal strips. It is clear from s 17V that Parliament intended marginal strips to be controlled and regulated by the concessions regime.
[45] We agree with Panckhurst J that Mr Reay was required to obtain a concession in respect of the Pyke River marginal strip.

Outcome

[46] The appeal is dismissed.
[47] As regards costs, Mr Withnall submitted that even if Mr Reay lost the appeal he should not be ordered to pay costs because he was not responsible for the uncertainty created by the legislation and because a large number of other commercial fishers were affected. The case had wider ramifications beyond him.
[48] We are not persuaded to depart from the normal rule that costs should follow the event. This was not a test case in the true sense.
[49] The appellant is ordered to pay the respondent costs for a standard appeal on a band A basis with usual disbursements.






Solicitors:
Susan Grey, Nelson for Appellant
Crown Law Office, Wellington for Respondent

[1] Reay v The Minister of Conservation [2014] NZHC 1844. The three successful grounds were that the delay in processing Mr Reay’s applications for concessions under the Conservation Act 1987 was unreasonable; it was unlawful for DOC to require him to acknowledge fees before having his application processed and unlawful to require him to file separate applications in respect of different conservancies. Justice Pankhurst was only prepared to issue a formal declaration in respect of the second ground.

[2] Justice Panckhurst held it was unlawful for DOC to require Mr Reay to file separate applications in respect of the different conservancies. That ruling has not been challenged on appeal.

[3] Fisheries Act 1996, ss 18–20.

[4] Sections 19(4)(c) and 25–25B.

[5] The concession was subject to conditions concerning the use of quad bikes.

[6] Fisheries Act 1996, s 12.

[7] Fisheries Act 1996, s 9.

[8] Section 19(4)(c).

[9] Section 17B(7).

[10] Conservation Act 1987, s 17O(1).

[11] Reay v The Minister of Conservation, above n 1, at [101]; see Fisheries Act 1996, s 8(1), and Conservation Act, s 6(ab).

[12] Conservation Act, s 2(1), definition of “conservation”.

[13] Under s 2 of the Conservation Act “effect’ has the same meaning as it does in the Resource Management Act 1991.

[14] Conservation Law Reform Act 1990.

[15] Interpretation Act 1999, s 22(2).

[16] Conservation Act, s 17O(4).

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