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High Court of New Zealand Decisions |
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY CIV 2005-485-2503 UNDER the Declaratory Judgments Act 1908 and the Judicature Amendment Act 1972 BETWEEN CHIEF EXECUTIVE, MINISTRY OF FISHERIES Applicant AND RONALD JOHN SMERDON First Respondent AND CATCH HISTORY REVIEW COMMITTEE Second Respondent Hearing: 7 May 2009 Appearances: P A McCarthy for Applicant No appearance by or on behalf of First Respondent Judgment: 18 May 2009 RESERVED JUDGMENT OF RANDERSON J This judgment was delivered by me on 18 May 2009 at 3.30 pm, pursuant to r 11.5 of the High Court Rules Registrar/Deputy Registrar Solicitors: Crown Law Office, PO Box 2858, Wellington Izard Weston, PO Box 5348, Wellington 6040 MINISTRY OF FISHERIES V SMERDON AND ANOR HC WN CIV 2005-485-2503 18 May 2009 Introduction [1] The central question in this application for judicial review under the Fisheries Act 1996 is whether late catch returns can be taken into account under s 32 of the Act when determining the extent of provisional catch history under Part 4 of the Act. The second respondent, the Catch History Review Committee, held that they could be taken into account if there was an adequate explanation for the late return. The submission on behalf of the appellant (the Chief Executive, Ministry of Fisheries) is that no discretion is available to enable late catch returns to be taken into account for the purpose of calculating provisional catch history. [2] The first respondent Mr Smerdon has taken no steps in this proceeding. The Review Committee abides this Court's decision. Statutory context [3] The purpose of the Act is to provide for the utilisation of fisheries resources while ensuring sustainability: s 8(1). One of the ways in which the statutory purpose is achieved is through the operation of a quota management system under Part 4 of the Act. Part 4 sets out a system for making fish stock subject to the quota management system. Although the legislation applicable at the material time was amended with effect from 1 October 2004, the statutory process remains much the same and involves the following steps in broad terms: a) A declaration by the Minister of Fisheries to make a stock subject to the quota management system by notice in the Gazette: s 18. b) Setting a total allowable commercial catch for the stock: s 20. c) Allocating quota on the basis of provisional catch history (PCH): s 30 (now s 29A). d) Determining eligibility to receive PCH for the stock in question: ss 32-34. e) Notifying eligibility to receive PCH, which notification must include advice as to the date by which objections must be lodged: s 35. f) As soon as practicable after the date for objections, the Chief Executive completing a determination of any objection received, deciding whether the person concerned is eligible to receive PCH, and notifying the person concerned of the outcome. The notification is to include advice as to rights of appeal, the time for lodging an appeal and, where the Chief Executive considers the person is not eligible to receive quota, the period in which the person may transfer the PCH to another: ss 36 and 37. [4] The rights of appeal to the Review Committee are defined in s 51 and its functions and powers in ss 283 to 293. Factual background [5] In 2003, the Minister of Fisheries declared that yellowfin tuna in quota management area number one would enter the quota management system with effect from 1 October 2004. The Minister declared that the qualifying years for this purpose were 1 October 1999 to 30 September 2002. [6] Mr Smerdon was a commercial fisher and, along with others, was notified by the Chief Executive by letters dated 21 November 2003 and 10 December 2003 of his eligibility to receive an allocation of 533 kgs of provisional catch history (PCH) for the relevant area. Mr Smerdon objected to the Chief Executive against the calculation of his PCH entitlement by notice dated 2 February 2004, asserting that 67 kilograms of yellowfin tuna in the relevant area had not been included in his PCH allocation. The Chief Executive advised Mr Smerdon by letter dated 30 April 2004 that his objection was declined because his catch landing return relating to the 67 kgs of yellowfin tuna was received by the Ministry of Fisheries outside the relevant time limits. [7] The disputed return related to a fishing trip Mr Smerdon undertook between 25 and 28 May 2000. Under the Fisheries (Reporting) Regulations 1990, he was obliged to provide Tuna Longline Catch Landing Returns for that trip by 15 June 2000 but the return was not provided until 7 November 2000. The Chief Executive also contends that, in order to be eligible for PCH purposes, the return had to be given to the Chief Executive on or before the 15th day after the close of each applicable qualifying year. That meant in Mr Smerdon's case that the relevant return had to be given to the Chief Executive by 15 October 2000. [8] Mr Smerdon appealed to the Review Committee by notice dated 24 May 2004. Following a hearing on 29 August 2005, the Review Committee issued its decision upholding Mr Smerdon's appeal and increasing his PCH by 67 kgs. [9] Mr Smerdon did not appear at the hearing but sent a facsimile dated 26 August 2005 in which he said: In regard to CLR 229470, you will note that I have admitted that this return was late, being sent in but this was due to skipper running my boat at that time failing to send it. (Note: signed by R J Heaton) And was much later found still in CLR book and sent immediately. [10] After reciting the background facts and the submissions on behalf of the Ministry of Fisheries the Review Committee stated: 20. The lateness of the relevant return came about as a result of simple human error. The Ministry concedes that there was no attempt on the part of the fisher to "pull the wool over the eyes" of the Ministry. It is accepted that the additional 67kgs will not impact on the sustainability of the yellowfin tuna resource. Clearly the fish was taken and it was reported, albeit late. The Ministry does not point to any other inconsistencies in the audit trail, always available to the Ministry by reference to returns from the applicable licensed fish receiver. Furthermore it is clear that there is no history of failings on the part of this fisher in submitting accurate returns on time, and it is not necessary for the orderly implementation and management of the Quota Management System that this one blemish be held against the appellant in the circumstances of this case. A minor adjustment to the PCH allocations by reason of the 67kgs of yellowfin tuna caught can be made if this Committee concludes that this one return out of so many can be taken into account in the PCH allocations. I have no difficulty concluding that the return CLR229470 should be taken into account and the 67kgs of yellowfin tuna be added to the appellant's PCH allocation in that fishery. 21. I have also regard to the fact that more recently it has become Ministry practice to communicate immediately with a fisher if a return appears not to have been filed within the required time following landings; and Ministry inquiries are made as to the whereabouts of the relevant returns. There is today a much more ready and regular communication between Ministry officials and fishers if returns are either missing or are inaccurate in any respect. There is invariably an immediate inquiry from the Ministry of the fisher. The Committee is also aware that such current practices did not occur in the earlier years although it was intended that they do so. Had that inquiry been made in the appellant's case, given the clear existence of a correctly completed form from the delayed delivery of the lawful return/report would have been immediately remedied and certainly remedied within applicable time limits. 22. In my view the explanation proffered by the appellant is adequate and there is no underlying reason why the report cannot be taken as having been deemed to be filed within time. It follows therefore that an additional 67kgs for yellowfin tuna is to be added to the YFN1 PCH allocation of the appellant. This operates to increase his PCH in YFN1 from 534kgs to 601kgs. That is the decision of the Committee. The Chief Executive's submissions on appeal [11] Mr McCarthy submitted for the Chief Executive that the substantive entitlement to an allocation of PCH depends upon "eligible catch" reported in "eligible returns". At the material time, these terms were defined in ss 32 and 34. Section 32 relevantly provided: 32 Criteria of eligibility to receive provisional catch history for quota management stock (1) If a stock is declared by notice under section 18 of this Act to be subject to the quota management system but the stock was not, immediately before the date of the publication of the notice, controlled by means of individual catch entitlements, a person is eligible to receive provisional catch history for the stock if the person - (a) Either - ... (iii) In the case of a stock that is a species of tuna, held, at any time during any applicable qualifying year, a fishing permit issued under section 63 of the Fisheries Act 1983 or section 91 of this Act that authorised the holder to take the stock; or ... and has provided the chief executive with eligible returns for the stock for the applicable qualifying year or qualifying years. (2) For the purposes of this Part of this Act, an eligible return is a lawfully completed catch landing return or a catch effort landing return as referred to in the Fisheries (Reporting) Regulations 1990 that, - (a) In the case of any stock referred to in subparagraph (ii) or subparagraph (iii) of subsection (1)(a) of this section, was given to the chief executive on or before the 15th day after the close of each applicable qualifying year; or (b) In any other case, was given to the chief executive on or before the 15th day of October 1994. (Emphasis added). [12] Pausing at that point, eligibility to receive PCH required, in the present case: a) The provision to the Chief Executive of "eligible returns" for the yellowfin tuna for the applicable qualifying year or years; b) In order to be an "eligible return" it must have been a lawfully completed Catch Landing Return (or a Catch Effort Landing Return) as referred to in the Fisheries (Reporting) Regulations 1990; and c) The Catch Landing Return had to be given to the Chief Executive on or before the 15th day after the close of each applicable qualifying year. [13] The next step in the calculation of PCH is the assessment of "eligible catch" under s 34. This section provides that eligibility to receive PCH depends upon "the total weight of eligible catch reported in the person's eligible returns in respect of the period of 12 consecutive months within the qualifying years...". Section 34 also defines the expression "eligible catch". Relevantly, s 34 provided at the time in question: 34 Calculation of provisional catch history (1) The provisional catch history of a person is, - (a) ... (b) If the qualifying year or years are set under section 33(b) of this Act and the person is eligible to receive provisional catch history under section 32(1)(a)(iii) of this Act for any stock, the total weight of eligible catch reported in the person's eligible returns in respect of the period of 12 consecutive months within the qualifying years relating to the person, which period shall be (i) Chosen by the person in accordance with section 35(3)(c)(iv) or section 35(4)(b) of this Act; or (ii) If the person has not made such a choice, chosen by the chief executive in accordance with section 35(1)(d) of this Act: (c) ... (2) For the purposes of this Part and Part 15 of this Act, the term eligible catch means the total weight of all the catch of the relevant stock lawfully taken and lawfully reported as landed or otherwise lawfully disposed of by a person eligible to receive provisional catch history under section 32 of this Act during the applicable qualifying years; ... (Emphasis added). [14] As the Court of Appeal held in Chief Executive, Ministry of Fisheries v Brace [2007] NZCA 410 at [24], in order to be "lawfully reported" for the purposes of s 34(2), the catch must have been reported in accordance with the procedures contained in the Act and Regulations. In the present case, as already noted, the relevant return was not received in the period specified by the Fisheries (Reporting) Regulations 1990 nor was it provided to the Chief Executive by the 15th day after the close of the relevant qualifying year i.e. by 15 October 2000. In fact, it was not received for more than 12 months after that date. [15] The combined effect of ss 32 and 34 in relation to Mr Smerdon's eligibility to receive PCH required: a) The lawful taking of the relevant catch; b) The lawful completion and reporting of the relevant catch under the Fisheries (Reporting) Regulations 1990; and c) Giving the relevant returns to the Chief Executive on or before the fifteenth day after the close of each applicable qualifying year. [16] Mr McCarthy submitted that the Court of Appeal accepted in Brace that, in enacting the 1996 Act, Parliament intended to achieve certainty and finality even though there may be apparent unfairness in individual cases. In Brace, the Court of Appeal was considering the way in which PCH is calculated under the Act and, in particular, whether the Review Committee had jurisdiction to amend catch returns to include additional quantities of fish not originally reported in those returns. In deciding that the Review Committee did not have such jurisdiction, the Court took into account extracts from the Primary Production Committee's report to the House following its consideration of the Fisheries Bill. The relevant material is at [20] of the Court of Appeal's decision: [20] We note also that when the Primary Production Committee reported to the House following its consideration of the Fisheries Bill, it said (at xvi): Fishing industry [submitters] generally focused on the provision of a prescriptive, clear and logical mechanism for allocating quota, with separate provisions for allocations on the basis of catch history and Individual Catch Entitlements (ICE), and an appropriate appeal mechanism. We are recommending several amendments to clarify the allocation process. The Committee also noted that an increase in one fisher's allocation may impact on the allocations of other fishers, in circumstances where the Crown does not have sufficient unencumbered quota to meet the increase (at xviii). Finally, the Committee said (at xxi): While there exists an obligation to record bait caught, by species, this obligation has not been consistently adhered to by fishers, or consistently enforced or interpreted by the Ministry of Fisheries. The considerations raised in these extracts are relevant to the interpretative task before us. [17] The Court of Appeal also referred to the provisions of s 292(1) which relate to the admissibility of evidence before the Review Committee. Section 292(1) provides: The Catch History Review Committee may receive in evidence any statement, document, information, or matter that may, in its opinion, assist it to deal effectively with the matter before it, whether or not the same would otherwise be admissible in a court but, unless expressly otherwise provided in this Act, the Committee shall not receive in evidence any records or returns required to be provided under this Act or the Fisheries Act 1983 that either have not been provided to the chief executive or were provided to the chief executive after the date by which they were required to be provided. [18] As the Court of Appeal noted: [31] The latter part of this provision underscores the importance of returns, duly filed, in the scheme of the Act. We consider that it is inconsistent with this limitation that the Committee be able to amend returns years after the event to incorporate fishers' good faith estimates of their catch in the qualifying period, even where, as here, those good faith estimates were provided soon after the qualifying period. [32] We are reinforced in the view that we have reached on the statutory language by the considerations mentioned in the extracts quoted at [20] above from the Primary Production Committee's report on the Bill. In particular: (a) We accept that there is a need for certainty and finality. We consider that the Act, as framed, does show a legislative intention to achieve certainty and finality, which would be undermined if we were to adopt the approach which the Judge upheld. (b) We recognise the need to take account of the interests of other fishers, who did comply with their reporting obligations and have received quota accordingly. Their quota might be subject to downward readjustment (depending on conditions within the particular fishery) if revisions could be made on the basis of informal reporting. (c) The interpretation adopted by the Judge may well itself create unfairness. There may be others who could legitimately claim to have reported their catch of bait fish to the Ministry in some informal way, and so to be entitled to additional quota, whilst others, who caught bait fish legitimately but did not report their catch even informally, may miss out. The point is that Parliament was obviously attempting to create clear entitlements under the Act by drawing lines. Redrawing those lines does not eliminate unfairness it merely redistributes it. To these considerations we add that the Primary Production Committee also expressed the view that only lawfully completed and furnished returns should be used to calculate provisional catch history (at xvii). We consider that that result is what the wording of the Act achieves. Discussion [19] The grounds upon which an appeal may be brought to the Review Committee were carefully specified in s 51(1) at the relevant time as follows: 51 Rights of appeal (1) Any person, including the chief executive, may, subject to subsection (3) of this section and on or before the date specified for the purpose in the relevant notice under section 36 or section 41 of this Act, appeal to the Catch History Review Committee against,-- (a) In the case of any stock for which provisional catch history was allocated under section 41 of this Act, - (i) A decision of the chief executive to the effect that the person is or is not a commercial fisher who has an individual catch entitlement entitling the person to an allocation of provisional catch history; or (ii) An allocation of provisional catch history that is different from the amount to which the person is entitled under section 40 of this Act: (b) In any other case,-- (i) A decision of the chief executive to the effect that the person is or is not eligible to receive provisional catch history under section 32(1)(a) of this Act either because that person held or did not hold a fishing permit or controlled fishery licence at any time during the applicable qualifying year or years; or (ii) A decision of the chief executive to the effect that the person has, or does not have, eligible catch in the qualifying year or years entitling the person to be allocated provisional catch history; or (iii) A decision of the chief executive as to the quantum of eligible catch reported in any eligible returns made by any person eligible to receive provisional catch history, on the ground that-- (A) The information on the relevant returns held by the chief executive has been incorrectly recorded by the chief executive; or (B) The chief executive has excluded fish, aquatic life, or seaweed that was lawfully taken and lawfully reported in eligible returns from the person's eligible catch; or (iv) A decision of the chief executive to the effect that the person is or is not eligible to be allocated quota under paragraph (b)(i) or paragraph (b)(ii)(A) of section 35(1) of this Act either because that person held or did not hold a fishing permit or controlled fishery licence as at the date of the publication of the notice under section 18 of this Act declaring the stock to be a quota management stock; or (v) An allocation of provisional catch history that is different from the amount to which the person is entitled under section 34 of this Act. [20] The Review Committee "has all such powers as are necessary or expedient to enable it to carry out its functions": s 284(5). Except as expressly provided otherwise in the Act, the Review Committee may regulate its procedure in such manner as it thinks fit: s 287(1). Despite the apparent breadth of the Review Committee's powers, it must exercise its functions in accordance with law and, in particular, having regard to the statutory regime under consideration. I am satisfied that the Review Committee does not have jurisdiction to accept late returns for the purpose of calculating PCH where it is satisfied that a reasonable explanation is available. That conclusion would be contrary to the express terms of ss 32 and 34 including, in particular, the definitions of "eligible returns" and "eligible catch". [21] In effect, the Review Committee has assumed the jurisdiction to override the specific statutory requirements that the Catch Landing Return must comply with the Fisheries (Reporting) Regulation 1990 and must be given to the Chief Executive on or before the fifteenth day after the close of each applicable qualifying year. There is no express authority to enable the Review Committee to exercise any discretion and I am satisfied that any implied authority would be inconsistent with the express language of ss 32 and 34 and the Parliamentary intention to achieve certainty and finality as discussed by the Court of Appeal in Brace. Since the Review Committee is a creature of statute, it does not have any inherent jurisdiction which would enable it to do what it purported to do. Conclusion and Disposition [22] For the reasons stated, I conclude that the Review Committee wrongly allowed the disputed catch return to be taken into account in the allocation of the first respondent's provisional catch history. [23] The decision of the second respondent is set aside accordingly. There is no basis for any reconsideration of the matter. [24] The Chief Executive does not seek costs and there will therefore be no order for costs. ______________________________ A P Randerson J Chief High Court Judge
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