Reay v Minister of Conservation [2014] NZHC 1844 (7 August 2014)

An application for judicial review..........................................................................[1] The issues ...............................................................................................................[5] Some further background .......................................................................................[9] Introduction [9] The West Coast conservatory application [10] The Southland conservatory application [11] Did Mr Reay require a concession? .....................................................................[13] Introduction [13] The Fisheries Act 1996 [16] The Conservation Act 1987 [26] National Parks Act 1980 and Reserves Act 1977 [39]

Is the Fisheries Act an exclusive code? [44] Implied repeal [49] Non-derogation from grant [55] Were Mr Reay’s concession applications assessed in a lawful manner? .............[59] Longfin eels [59] Eel fishing [65] The West Coast concession decisions [70] The Southland concession decision [83]

A failure to give effect to the Treaty of Waitangi (Fisheries Claims) Settlement Act 1992? [90] Were concession application decisions wrongly based on the sustainability of

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the eel population? [97] Did DOC otherwise err in the course of its assessment of the concession applications?.......................................................................................................[108]

Could Mr Reay be required to file separate applications for different conservancies? [109] Could Mr Reay be required to accept liability for processing costs? [114] Was a concession required to use marginal strips to access non-conservation waterways? [123] Was DOC dilatory, unfair and did it act in bad faith in considering Mr Reay’s concession applications? [130]

Result..................................................................................................................[143]

[1] This is a wide-ranging application for judicial review in which the plaintiff, Bruce Reay, seeks a number of declarations concerning actions of the defendant, the Minister of Conservation (the Minister) through his delegates, in relation to fishing for eels on the West Coast of the South Island. Mr Reay has been a self-employed commercial eel fisherman for over 30 years. Since 1979 he has fished for freshwater eels in the rivers and lakes from Kahurangi Point northwest of Nelson in the north, to the Hollyford Valley in the south.

[2] After the Conservation Act 1987 came into force, most of the rivers and lakes customarily fished by Mr Reay were on land under the management of the Department of Conservation (DOC). An amendment to the Conservation Act in

1996 resulted in the need to obtain a concession from the Minister in relation to any commercial activity on a conservation area. Mr Reay applied for a concession, but it was still in the course of being processed when in 2000 freshwater eels in the South Island were brought under the quota management system. Mr Reay was allocated individual transferrable quota of 5.058 tonnes per annum.

[3] This stimulated a major difference between Mr Reay and DOC. The sustainability of the freshwater eel fishery was assessed by the Ministry of Fisheries under the Fisheries Act 1996. Yet, to Mr Reay’s eyes, DOC was undertaking a like assessment under the Conservation Act, both in relation to formulation of its conservation management plans and strategies and in assessing concession applications. This dispute raged for several years until in July 2008 Mr Reay’s application was declined. Then in August 2009, on review, Mr Reay was granted a concession to fish within parts of the West Coast conservancy area . Subsequently,

in March 2011 he was granted a concession to access, camp in and use boats in part of the Southland conservatory area, but only to facilitate access to waters not falling within the conservation estate. The review did not result in the grant of a concession for eeling within the conservation estate.

[4] Dissatisfied with these outcomes, in June 2013 Mr Reay filed this application for judicial review. The first and most fundamental challenge is to whether a concession from the Minister is required at all, given that Mr Reay holds both a fishing permit and individual transferrable quota to take eels from the West Coast/Fiordland area. And, if a concession is required, Mr Reay challenges the manner in which his applications were processed and determined, including whether the decision-makers failed to act promptly and with due diligence.

[5] Mr Withnall QC advanced eight submissions in support of the claim. I consider these can be conveniently considered by reference to three questions, which seem to me to address the issues in the case.

[6] The first question is whether Mr Reay was required to have a concession to fish for eels in waters within a conservation area? This is the major issue. Its resolution is largely a question of statutory construction. Mr Reay contends that the Fisheries Act established a code which exclusively governs eel fishing, whereas the Minister contends that the Conservation and related Acts also apply to the activity of eel fishing on conservation land. Hence, DOC considers there are two regimes which operate in parallel, so that Mr Reay required not only a fishing permit and quota, but also a concession to undertake the activity of eel fishing in a conservation area. Mr Withnall also raised arguments that the Fisheries Act impliedly repealed provisions of the Conservation Act and the National Parks Act 1980 and that the common law principle of non-derogation from a property grant was applicable. Mr Reay has a property right to take eels from within a designated quota area, but the concessions granted by DOC are said to derogate from that right and thereby breach the common law principle. These arguments will be assessed under this heading.

[7] The second question is whether the Department assessed the concession applications in a lawful manner? Two grounds of illegality are advanced. The first is that as a result of the manner in which DOC assessed concession applications, Māori’s right to a 20% share of the eel quota was not honoured. The second is that the sustainability of the eel fishery was considered in assessing applications when this was properly the concern of the Ministry of Fisheries, not DOC.

[8] The third question is whether DOC otherwise erred in the course of its assessment of the applications? This is something of a catchall question. Mr Reay advanced a miscellany of concerns which I shall consider under this heading. It is alleged that DOC:

(a) wrongly required Mr Reay to file separate concession applications with the West Coast and Southland conservancies;

(b) wrongly required Mr Reay to accept the quantum and pay the estimated costs of processing the Southland concession application prior to the commencement of processing;

(c) wrongly required Mr Reay to hold a concession to use a “marginal strip” to facilitate commercial eeling on non-conservation land; and

(d) acted in bad faith, was dilatory and unfair in considering the concession applications.

Various declarations are sought by way of relief in relation to the separate grounds of claim.

[9] This proceeding concerns events from 1998 when Mr Reay was sent an information pack by DOC relating to making a concession application, to mid-2012 when the review of a concession decision made by the Southland conservatory was finalised. The documentary material generated throughout this period is voluminous. It is convenient to split the chronology between the West Coast and the Southland

conservatory applications. But even doing this, I shall only note key milestones, not every interaction.

[10] 1979 – Mr Reay completed a forestry degree at Canterbury University and commenced commercial eeling on the West Coast from northwest Nelson south to Hollyford Valley.

1989 – Cabinet resolved that eel fishing in South Westland, south of the Cook River, should continue with catch levels determined by the sustainability of the resource, but that a research survey upon sustainable harvest levels was not warranted given the limited size of the fishery.

1992 – The Treaty of Waitangi (Fisheries Claims) Settlement Act 1992 (Settlement Act) was passed and Māori allocated a 20% share in the eel fishery.

1996 – The Fisheries Act 1996 was passed, including part 4, a revised quota management system.

October 1998 – DOC wrote to Mr Reay advising that a concession application to undertake commercial eel fishing on lands managed by DOC was required for him to continue fishing.

November 1998 – Mr Reay lodged a concession application to fish all waterways which he had traditionally fished.

March 2000 – DOC wrote to Mr Reay advising that legal issues associated with eel fishing concessions were still being worked through, so that application decisions would be delayed and requesting that he desist from eeling in the meantime. The letter also requested that he identify on a map the precise areas he wished to fish.

July 2000 – Mr Reay supplied three maps to DOC, which advised him that waters within the West Coast conservatory would continue to be assessed at the Hokitika office, but waters in the Southland conservatory would be assessed in the Invercargill office and would incur separate processing fees.

October 2000 – Commercial eel fishing in the South Island was brought under the quota management system.

December 2000 – DOC released a draft report proposing to grant a concession to Mr Reay to fish for eels in 66 rivers or creeks situated on stewardship land for a period of two years¹, subject to special conditions concerning the methods to be used in fishing and in accessing conservation land. The application was declined in relation to national parks, reserves, wilderness areas, wildlife refuges and reserves and ecological areas.

September 2001 – the concession applications of three other applicants were granted for a two year term. The special conditions stipulated in relation to Mr Reay’s application remained unacceptable to him, and DOC sought written confirmation concerning whether he wished to further pursue the application.

December 2001 – Mr Reay advised DOC he wanted his concession application to be considered in relation to all waters he had previously legally fished.

March 2002 – DOC sent a revised report to Mr Reay which recommended the grant of a concession, subject to agreement upon the special conditions.

October 2002 – DOC concluded in light of previous discussions that agreement upon the special conditions was improbable and that further work upon the concession application should cease.

_{written to “successive Ministers for some years” concerning
eel concession issues,}

and suggesting that a direct approach to DOC conservatory personnel would be more productive.

September 2006 – DOC confirmed to Mr Reay that his concession application was being processed, with feedback from local Māori awaited.

April 2007 – DOC provided a further draft report to Mr Reay for his comment which recommended that his application be declined.

August 2007 – Mr Reay provided detailed comments (18 pages) on the draft report to DOC.

July 2008 – DOC West Coast conservator accepted the final report recommendations and Mr Reay’s concession application was declined in relation to both fishing on, and access to, conservation land.

April 2009 – Mr Reay applied to DOC for a formal reconsideration of the application, but on the basis that waterways within the Westland National Park and reserves administered under the Reserves Act 1977 be excluded.

August 2009 – DOC completed a review of Mr Reay’s concession application and the West Coast conservator approved a five year concession to access and fish the area from the Waiho River to the Bruce Bay area and the Lower Cascade, subject to conditions concerning the methods to be employed.

October 2009 – Mr Reay sought the addition of numerous further waterways to the concession.

November 2009 – DOC amended the concession by the addition of some rivers or creeks, declined the inclusion of other waterways and noted that six waterways were already included within the concession granted in August.

November 2009 – Mr Reay accepted the five year concession as amended, which was to expire on 30 September 2014.

[11] August 2000 – DOC Southland conservatory office advised Mr Reay it would assess his application in relation to the Pyke River and Big Bay areas since these are within the Southland conservatory. Mr Reay was requested to supply detailed maps of the relevant waterways.

October 2000 – Mr Reay requested that the Southland application be placed on hold, pending the outcome of his West Coast conservatory application.

January 2002 – following complaints from Mr Reay regarding delay in processing his application, DOC confirmed his application would be removed from “on hold” and requested Mr Reay to complete an acknowledgement of fees form.

February 2002 – Mr Reay advised DOC he would not sign an acknowledgement of fees form, as he was awaiting developments in relation to his West Coast application.

October 2009 – Mr Reay requested that his Southland application be revisited. February 2010 – Mr Reay declined to sign an acknowledge of fees form. August 2010 – DOC declined a waiver of fees application.

August 2010 – Mr Reay provided a signed, but amended, acknowledgement of fees form.

December 2010 – DOC provided a draft report to Mr Reay for his comments. January 2011 – Mr Reay provided comments on the draft report.

March 2011 – DOC determined the application by declining a concession to undertake eeling, being waterways in the Pyke River Conservation Area and in Mount Aspiring National Park, but granted a concession for camping and boating

activities on Pyke River marginal strip land to facilitate eeling on non-conservation land.

March 2012 – DOC and Mr Reay signed a deed of settlement in relation to the fees dispute and DOC agreed to review the previous concession decision.

[12] I emphasise that the above chronologies are much abbreviated. References to DOC meetings with Mr Reay, exchanges between DOC and the Ministry of Fisheries and to various other interactions are omitted. For example, solicitors, the South Island Eel Association, the Seafood Industry Association and members of Parliament made representations on Mr Reay’s behalf. There was also correspondence between Mr Reay and various Ministers of Conservation. I also note that from 2000 to 2006 Mr Reay worked for DOC in a predator control programme at Okarito trapping stoat. At times he was also engaged in whitebaiting and possum hunting on his own account.

[13] To briefly recap, Mr Reay contends that the Fisheries Act comprises a code which, as a result of his holding a fishing permit and a quota entitlement, enabled him to fish for freshwater eels within ANG16, the quota management area in which he may take his entitlement. Hence, Mr Reay contends that a concession from DOC was not required before he could take eels from a conservation area within ANG16. ANG16 covers an area commencing in the north at about Kahurangi Point and running down the West Coast to a point somewhat south of Haast. ANG15, I note, covers the lower South Island; the areas of Fiordland, Southland and Otago.

[14] DOC, however, contends that land subject to its management may only be used for a commercial activity pursuant to a concession. The concession authorises the particular commercial activity on a conservation area, and also regulates how

such activity is to occur, typically through special conditions applicable to the concession.

[15] DOC maintains that there is nothing unusual in the existence of two statutory regimes operating in parallel. Often a commercial activity requires authorisation under one act, but another act regulates the land upon which the activity is to occur. Hence, the company or individual may also need to apply to the land owner, or administrator, for permission to undertake the activity at a particular location, or locations. DOC is responsible for the management of land not only under the Conservation Act, but also under the National Parks Act 1980 and the Reserves Act

[16] Part 2 defines the purpose and principles of the Act. The former is defined:

(1) The purpose of this Act is to provide for the utilisation of fisheries resources while ensuring sustainability.

(a) maintaining the potential of fisheries resources to meet the reasonably foreseeable needs of future generations; and

(b) avoiding, remedying, or mitigating any adverse effects of fishing on the aquatic environment

utilisation means conserving, using, enhancing, and developing fisheries resources to enable people to provide for their social, economic, and cultural well-being.

All persons exercising or performing functions, duties, or powers under this Act, in relation to the utilisation of fisheries resources or ensuring sustainability, shall take into account the following environmental principles:

(a) associated or dependent species should be maintained above a level that ensures their long-term viability:

	(b)	biological diversity of the aquatic environment should be maintained:
	(c)	habitat of particular significance for fisheries management should be protected.
[18]	Section 10,	headed “Information principles”, provides that anyone

exercising powers under the Act in relation to the utilisation and sustainability purposes shall base decisions on the best available information, consider any uncertainty in the available information and exercise caution when information is uncertain, unreliable or inadequate. However, the absence of information, or uncertainty, may not be used as a reason to postpone any measure designed to achieve the purpose of the Act.

[19] Part 3 is entitled “Sustainability measures”. Section 11 relevantly provides:

(1) The Minister may, from time to time, set or vary any sustainability measure for 1 or more stocks or areas, after taking into account—

(b) any existing controls under this Act that apply to the stock or area concerned; and

(2) Before setting or varying any sustainability measure under subsection (1), the Minister shall have regard to any provisions of—

(a) any regional policy statement, regional plan, or proposed regional plan under the Resource Management Act 1991; and

Without limiting the generality of subs (1), s 11(3) provides that sustainability measures may relate to the catch limit (including any total allowable catch for a fish stock); the size, sex or biological state of any fish; the areas from which fish may be taken; the fishing methods that may be used and the fishing season.

[20] Before any sustainability measures are imposed the Minister must consult with interested parties, including Māori, environmental, commercial and recreational interests²and, after imposing or altering the sustainability measures, supply reasons to interested parties for the decision reached.³

[21] Section 13, entitled “Total allowable catch” (TAC), requires the Minister to set a TAC for each management area.⁴Further:⁵

(a) maintains the stock at or above a level that can produce the maximum sustainable yield, having regard to the interdependence of stocks; or

(b) enables the level of any stock whose current level is below that which can produce the maximum sustainable yield to be altered—

(i) in a way and at a rate that will result in the stock being restored to or above a level that can produce the maximum sustainable yield, having regard to the interdependence of stocks; and

(ii) within a period appropriate to the stock, having regard to the biological characteristics of the stock and any environmental conditions affecting the stock; or

(c) enables the level of any stock whose current level is above that which can produce the maximum sustainable yield to be altered in a way and at a rate that will result in the stock moving towards or above a level that can produce the maximum sustainable yield, having regard to the interdependence of stocks.

[22] In setting the TAC the Minister must not postpone or fail to act because of an absence of information or uncertainty,⁶but rather set a TAC using the best available

_{information and in a manner consistent with utilisation while ensuring
sustainability}

of the particular fish stock.⁷The TAC may be varied as necessary,⁸and the Minister may set the TAC at zero.⁹

[23] Part 4, entitled “Quota management system”, requires the Minister to be

(1) The Minister must make a determination under subsection (2) if satisfied that the current management of a stock or species—

Further sections in Part 4 govern setting the total allowable commercial catch,¹¹the matters relevant to setting or varying the TAC¹²and the definition of quota management areas.¹³

[24] Finally, Part 6 of the Act governs the access to a fishery, including the need for fishers to hold a fishing permit. Section 89(1) provides that no one shall take any fish by any method unless under the authority and in accordance with a current fishing permit. However, subs (2) of the section provides when a fishing permit is not required, including when fish are not taken for the purpose of sale¹⁴and where

[25] Fishing permits are issued under s 91 and a permit is still required for taking any fish stock that are subject to the quota management system.¹⁶Where a person holds quota, their fishing permit will record that they are authorised to take fish stock that are subject to the quota management system.¹⁷A fishing permit may be issued

_{subject to conditions as to areas or methods, fishing gear, landing
places and periods}

of time within which the holder may take fish.¹⁸“Fishing” is defined in the interpretation section, s 2, and includes “any operation in support of or in preparation for any activities described in this definition”, the definition relevantly being “the catching, taking, or harvesting of fish ...”

(a) to manage for conservation purposes, all land, and all other natural and historic resources, for the time being held under this Act, and all other land and natural and historic resources whose owner agrees with the Minister that they should be managed by the Department:

(ab) to preserve so far as is practicable all indigenous freshwater fisheries, and protect recreational freshwater fisheries and freshwater fish habitats ...

conservation means the preservation and protection of natural and historic resources for the purpose of maintaining their intrinsic values, providing for their appreciation and recreational enjoyment by the public, and safeguarding the options of future generations ...

(b) the air, water, and soil in or on which any plant or animal lives or may live; and

[28] A “conservation area” is defined as land “for the time being held under [the] Act for conservation purposes.²²DOC manages various “Specially protected areas” described in Part 4 of the Act, including conservation parks which are to be managed so that natural and historic resources are protected, but also to facilitate public recreation and enjoyment of the parks.²³Ecological areas are to be managed so as to protect the value for which the area is held,²⁴while wildlife management areas are to be managed so that wildlife and wildlife habitat values are protected, together with the indigenous natural resources.²⁵Wildlife means any native

_animal.²⁶_{Part 5 of the Act governs
“Stewardship areas”, which are to be managed}

[29] Part 5B of the Act is entitled “Freshwater fisheries”. The Minister of Conservation has functions in relation to the freshwater sports fishery. Part 5A of the Act contains provisions for the establishment and functioning of the New Zealand Fish and Game Council, while Part 5B contains provisions, including offence provisions, for the regulation of the freshwater sports fisheries. However,

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 ...

Hence, the Part 5B offence and related provisions are not relevant to the commercial eel fishery .

[30] Of central importance to this case is the concession regime which came into force in July 1996 under Part 3B of the Act. Section 17O provides:

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

Subs (3) defines exceptions which are of no relevance, while subs (4) provides that any recreational activity in a conservation area does not require a concession, provided it is not undertaken for gain or reward.³⁰

[31] The power to grant concessions lies with the Minister, who may grant “a lease, licence, permit, or easement in respect of any activity”.³¹The contents of concession applications are governed by s 17S which requires that every application shall include a description of the proposed activity, the places where the proposed activity will be carried out, a description of the potential effects and how they may be mitigated, the duration of the concession and relevant information relating to the applicant and his/her ability to carry out the proposed activity.³²

(3) The Minister may require an applicant for a concession to supply such further information as the Minister considers necessary to enable a decision to be made, including the preparation of an environmental impact assessment in the form set out in Schedule 4 of the Resource Management Act 1991 or in such other form as the Minister may require.

(a) commission a report or seek advice from any person (including the Director-General) on any matters raised in relation to the application, including a review of any information provided by the applicant:

(b) obtain from any source any existing relevant information on the proposed activity or structure that is the subject of the application.

(5) Any information obtained by the Minister under subsection (4) shall be supplied to the applicant who may comment on it within such time as may be specified by the Minister.

(a) has advised the applicant that the applicant has not supplied any specified information required by or under this section, which information has not been received by the Minister; or

(b) has not received any report commissioned or advice sought under subsection (4); or

(c) has supplied information to the applicant under subsection (5) and the time limit specified under that subsection has not expired.

(1) The Minister shall consider every complete application for a concession that is received by him or her.

(2) If the Minister is satisfied that the complete application does not comply with or is inconsistent with the provisions of this Act or any relevant conservation management strategy or conservation management plan, he or she shall, within 20 working days after receipt of the application, decline the application and inform the applicant that he or she has declined the application and the reasons for declining the application.

(3) Nothing in this Act or any other Act shall require the Minister to grant any concession if he or she considers that the grant of a concession is inappropriate in the circumstances of the particular application having regard to the matters set out in section 17U.

(1) In considering any application for a concession, the Minister shall have regard to the following matters:

(c) any measures that can reasonably and practicably be undertaken to avoid, remedy, or mitigate any adverse effects of the activity:

(e) any relevant environmental impact assessment, including any audit or review:

(f) any relevant oral or written submissions received as a result of any relevant public notice issued under section 49:

(g) any relevant information which may be withheld from any person in accordance with the Official Information Act 1982 or the Privacy Act 1993.

(2) The Minister may decline any application if the Minister considers that—

(a) the information available is insufficient or inadequate to enable him or her to assess the effects (including the effects of any proposed methods to avoid, remedy, or mitigate the adverse effects) of any activity, structure, or facility; or

(b) there are no adequate methods or no reasonable methods for remedying, avoiding, or mitigating the adverse effects of the activity, structure, or facility.

(3) The Minister shall not grant an application for a concession if the proposed activity is contrary to the provisions of this Act or the purposes for which the land concerned is held.

[35] The term “effects” is defined in the interpretation section and has the same meaning as in the Resource Management Act 1991 (the RMA).³³The RMA definition is very broad and includes potential effects.³⁴

[36] Section 17W is headed “Relationship between concessions and conservation management strategies and plans”. It provides that where a conservation management strategy or plan provides for the issue of a concession for

_{a conservation area, a concession shall not be granted unless it is
consistent with the}

strategy or plan.³⁵Where, however, there is no strategy or plan, or alternatively the strategy or plan “does not make any provision for the activity to which the application relates”, the Minister may apply ss 17S, 17T and 17U, and grant a concession.³⁶The Minister may also decline an application which complies with any relevant conservation management strategy or plan if it is considered the effects of the activity are such that a review of the strategy or plan is more appropriate. Similarly, an application may be declined if the preparation of a strategy or plan is more appropriate.³⁷If a disappointed applicant requests the Minister to prepare, or review, a strategy or plan the applicant may be required to pay a reasonable amount towards the costs of that exercise.³⁸Where a concession is granted it must include a condition that the concessionaire must comply with any relevant conservation management strategy or plan.³⁹

[37] Section 17X empowers the Minister to impose such conditions as are considered appropriate, including:

Other conditions may relate to payment of rent, fees or royalties; and restoration of the site of the activity.⁴⁰

[38] Finally, s 17ZJ enables the Minister, where a concession is initially declined, to reconsider that decision. Otherwise, there is no right of appeal to a tribunal or court in relation to a decision.

[39] National parks are to be administered and maintained under the provisions of the Act so that “they shall be preserved as far as possible in their natural state”.⁴¹

The public have freedom of entry and access to the parks so that they may enjoy the benefits to be derived from “mountains, forests, sounds, seacoasts, lakes, rivers, and other natural features”.⁴²

[40] Section 5 provides that indigenous plants and animals are to be preserved, so that the prior written consent of the Minister of Conservation is required to take any plant that is indigenous to New Zealand and growing in a national park,⁴³or any

[41] The Minister is also empowered to grant concessions under s 49 of the Act. He, or she, must do so in accordance with Part 3B of the Conservation Act,⁴⁶and:

(2) Before granting any concession over a park, the Minister shall satisfy himself or herself that a concession—

(a) can be granted without permanently affecting the rights of the public in respect of the park; and

[42] Turning to the Reserves Act, DOC, subject to the control of the Minister, is declared to have the control and administration of reserves to enable their preservation and management for the benefit and enjoyment of the public.⁴⁷Further,

... the survival of all indigenous species of flora and fauna, both rare and commonplace, in their natural communities and habitats, and the preservation of representative samples of all classes of natural ecosystems and landscape which in the aggregate originally gave New Zealand its own recognisable character.

In addition, preservation of public access to reserve land must be ensured as far as possible, including access to the margins of lakes and rivers.⁴⁹

[43] As in the case of the National Parks Act, s 59A of the Reserves Act imports the concession provisions in Part 3B of the Conservation Act, which shall apply as if references to a conservation area were references to a reserve “and with any other necessary modifications”.⁵⁰

[44] I can deal with this aspect succinctly. The contentions are summarised at [6, [13]-[15]. Undoubtedly, the Act contains comprehensive provisions designed to achieve the sustainable utilisation of commercial fishing stocks in New Zealand. But, it is a bold step to suggest that the existence of such comprehensive provisions obviates the need for a concession under the Conservation Act to conduct a commercial fishing operation in a conservation area.

... no activity shall be carried out in a conservation area unless authorised by a concession.

Mr Reay clearly intended to conduct an activity in the nature of a business or occupation. Hence, in my view, he required a concession in order to fish in a conservation area. His fishing permit, and quota entitlement, conferred the right to conduct a commercial eel fishing operation and to take 5.058 tonnes per annum from the ANG16 quota area. But, I am satisfied that he also required a concession for both access and to undertake the activity of fishing, because the great majority of the waters he wished to fish were situated in a conservation area. I accept that the fishing and the concession regimes operate in parallel to regulate different aspects of the activity of fishing.

_{Fisheries Act is not to be regarded as a code. Counsel argued that
taken to its logical}

conclusion if the Act was a code it would absolve a permit holder from the obligation to comply with health and safety, or environmental, requirements – something not contended for on Mr Reay’s behalf. Attention was also drawn to the Select Committee’s report on clause 9 of the Fisheries Act Bill, now s 9 of the 1996 Act. Submitters drew attention to the limited reference to environmental principles and values in then clause 9, but the Committee responded:

We do not support the inclusion of such principles in the environmental principles clause. These values are provided for explicitly in other legislation, such as the RMA, Marine Reserves Act 1971, Marine Mammals Protection Act 1978 and the Wildlife Act 1953. Their inclusion into the environmental principles would introduce a range of non-utilisation values into the Bill and significantly undermine the interface with other statutes. The current interface reflects acceptance that fishing, like other activities, can be curtailed under the RMA and other statutes, on the basis of effects on matters such as intrinsic and amenity values.

[47] The more difficult question is the practical operation of, or interface between, the fishing and the concession regimes. In particular, how should DOC meet its obligation to preserve, so far as is practicable, all indigenous freshwater fisheries without intruding into the domain of the Minister of Fisheries to maintain sustainable utilisation of the eel fishery? This is a practical question, and one I shall confront in assessing the next question – whether DOC assessed Mr Reay’s concession applications in a lawful manner.

[48] Before I turn to that question, however, it remains to consider Mr Withnall’s contention of implied repeal and reliance upon the principle of non-derogation from a property grant. Does either avail Mr Reay in relation to the contention that a concession was not required?

[49] Mr Withnall submitted that to the extent that there was any overlap or inconsistency between the National Parks Act 1980 and the Fisheries Acts of 1983 and 1996, the former was to be read as impliedly repealed pro tanto (in part) by the latter two Acts. Counsel stated that the Fisheries Acts were later in time, and were also special Acts in that they specifically dealt with the subject matter of fishing in

New Zealand waters. Hence, the argument was that the specific provisions of the Fisheries Acts, by which fishers were authorised to take fish stocks on closely prescribed terms, necessarily regulated commercial fishing; and to the extent that there was inconsistency, the earlier more general National Parks Act was impliedly repealed with reference to the need for a concession to undertake commercial fishing.

[50] The statement of claim asserts numerous grounds of relief, but implied repeal is not one of them. Nonetheless, both counsel made brief submissions concerning this aspect and I shall deal with it, although not at length.

[51] For present purposes the relevant principles were sufficiently described in a decision of the Court of Appeal delivered by Richardson J:⁵¹

The general legal principles are well settled. One provision repeals the other by implication if, but only if, it is so inconsistent or repugnant to the other that the two are incapable of standing together: if it is reasonably possible to consider the provisions so as to give effect to both, that must be done (36 Halsbury’s Laws of England (3rd ed) para 709, Maxwell on the Interpretation of Statutes (12th ed, 1969) pp 191-196). Such questions of interpretation commonly arise where there is an arguable conflict between earlier general legislation and later special legislation.

Mr Withnall did not make specific reference to the provisions said to be in conflict, or repugnant, to one another. However, it is clear enough he contended that s 49 of the National Parks Act, which imported the concessions regime in Part 3B of the Conservation Act, was impliedly repealed as a result of the passing of Fisheries Acts.

[52] Mr Withnall relied on Alpine Deer Ltd v Attorney-General, ⁵²a case which has direct parallels with this one. It concerned the interface between the National Parks Act 1952 and the Wild Animal Control Act 1977. Under the earlier Act licences to conduct commercial deer recovery operations in a national park were granted under a power to permit “the carrying on of any trade, business, or occupation within the park”. The Wild Animal Control Act on coming into force provided specifically for the licensing of commercial hunting of wild animals. And

_{s 21 empowered the issue of permits to enter Crown land for wild animal
recovery}

hunting. Tipping J accepted that the latter, more specific, Act impliedly repealed the ministerial power to grant a licence for deer hunting within a national park.

[53] The Judge found three points particularly persuasive. First, the subject matter of the 1977 Act was specifically the control of hunting for wild animals, whereas the older Act covered commercial activity in national parks generally. Second, the 1977

Act on its terms conferred “exclusive authority” on the decision-maker in relation to the issue of permits for wild animal recovery in national parks. Third, the new Act provided that licences for wild animal recovery only continued in force for three months after it came into force. From these three points it was a short step to the conclusion that the new permitting regime displaced, or repealed, the former licensing regime. The respective provisions were inconsistent, or repugnant, and the previous licensing power was impliedly repealed.

[54] Here, I am not persuaded that there is inconsistency between the Fisheries permit/quota regime on the one hand, and the concession regime on the other. As I have already said, the former enabled Mr Reay to take 5.058 tonnes of eels from the ANG16 quota area, whereas a concession from DOC was required to access those waters located within a conservation area. It remains, however, to consider whether the provisions relevant to the parallel regimes were correctly understood and applied by DOC.

[55] This maxim, or principle, applies in relation to the grant of property rights. It recognises that the grantor cannot give with one hand and take away with the other. The principle has been described in this way:⁵³

[24] ... no-one who has granted another a right of property, whether by sale, lease or otherwise, may thereafter do or permit something which is inconsistent with the grant and substantially interferes with the right of property which has been granted.

Most often the principle finds application in a land law context. But, the principle is applicable to all legal relationships which confer a right in property.

[56] In Mount Cook National Park Board v Mount Cook Motels Limited⁵⁴the Court of Appeal accepted that non-derogation may apply to a licensing fee imposed pursuant to a statutory bylaw, if the fee was so excessive as to frustrate the lease previously granted and to which the fee applied. In this instance Mr Withnall contends that the Crown may not give a property right to take eels with one hand, and take away or seriously erode that right with the other. He maintains that the Ministry of Fisheries granted a right to Mr Reay, but DOC has all but taken it away by virtue of its concession decisions.

[57] Ms Boadita-Cormican disputes this analysis. She submitted that in relation to an entitlement conferred through the exercise of a statutory power, it was necessary to consider the intention of the grantor, Parliament, in particular whether it intended that the Fisheries Act should regulate access to the waters where fishing may occur. Counsel submitted that, while the quota area within which eels may be taken is regulated by the Fisheries Act, access to waters in a conservation area is regulated by DOC under the concessions regime. Given this statutory scheme there was no derogation from the grant of a property right.

[58] I have already accepted that there is a distinction between the right to take fish within a quota area, and the right to access waters in a conservation area. Derogation from the grant has not occurred. But did DOC reach the concession decisions by reference to relevant considerations, or did it (as alleged) stray and consider matters solely within the purview of the Minister of Fisheries? I turn to this enquiry.

[59] Two species of eel are found in New Zealand waters. The longfin eel⁵⁵is endemic to New Zealand. A shortfin eel⁵⁶is also found in freshwater habitats in New Zealand, but this species is found elsewhere including in Australia. In the

⁵⁴_{Mount Cook National Park Board v Mount Cook Motels
Limited [1972] NZLR 481 (CA).}

approximately 90% of the eels he has caught on the West Coast of the South Island over the years are longfins.

[60] The longfin eel is found throughout New Zealand’s freshwater waterways, including the Chatham Islands. They are found in any waterways which are connected to the sea, including high country lakes, some of which are hundreds of kilometres inland.

[61] The longfin is long-lived, with females capable of reaching a hundred years in age and weighing up to 24 kgs. The growth rate of longfin eels is slow, being in the order of 1-2 cms a year.

[62] Longfin eels migrate at the end of their lifecycle to spawning grounds thought to be near Tonga. Male longfins migrate when they are about 700 mms in length and, on average, about 23 years of age. Females, however, are typically over one metre in length and may be up to 60 years of age before they migrate. Upon reaching the spawning grounds each female produces millions of eggs and the parent eels die. The eggs float to the surface, hatch into larvae and drift back to New Zealand via oceanic currents. The drifting process is thought to take up to

[63] Upon arrival back in New Zealand the larvae develop into transparent glass eels. The glass eels occupy estuaries while they develop colouration and become elvers – very small eels. In summer the elvers migrate upstream to habitats in creeks, rivers or lakes. The elvers are under 12 cms in length at this time.

[64] Longfin eels are omnivorous. Smaller eels eat largely insect larvae, while larger eels include small fish in their diet.

2000, North Island eels were not until 2004. In addition to the total allowable catch, the minimum size at which eels may be taken is 220 gms, while there is also a maximum size limit of 4 kgs.

[66] Mr Reay, and other commercial fishermen, use baited fyke nets to catch eels. These are set at a chosen site for a few days before being relocated. The nets enable undersized eels to escape, while eels weighing over 5 kgs must be released. Mr Reay considered that on average about 25% of his total catch was oversized and released.

[67] Mr Reay advised DOC that his fishing season was typically from August to May, but even then dependent upon river and weather conditions. Fishing is undertaken from an inflatable boat and often the catch is flown out alive from isolated locations. This necessitates storage of live eels in a holding pen until a sufficient quantity have been gathered.

[68] Mr Reay has fished using a 10 year cycle. His experience suggests that an area unfished for 10 years produces eels of a similar size to those caught 10 years previously.

[69] Mr Don Jellyman is a NIWA freshwater fishery scientist who has undertaken extensive research in relation to the eel fishery. In July 2005 he provided a report to DOC containing recommendations upon protection of the West Coast eel fishery. Dr Jellyman concluded the report by noting that Mr Reay was well known to him on account of his co-operation in providing helpful information for research purposes. His report ended on this note:

I [want] to take the opportunity to acknowledge [Mr Reay’s] integrity, and express my thanks for his interest and assistance in our research on this enigmatic species.

[70] An assessment of the decisions is complicated on account of the drawn out nature of the process, and DOC's method of providing a draft report followed by a final report after comments were received from the applicant. The chronology (see [10]) refers to the several reports prepared between 2000 and 2009. My focus will be upon the report prepared in July 2008 in which the concession application was declined, the review of that decision in 2009, and the amendment of the review decision in late 2009.

[71] The 2008 final report is comprehensive, being 35 pages excluding annexures. The report drew on previous ones, prepared some years earlier before Mr Reay’s application was put on hold. Importantly, the application at this point was wide ranging, in that Mr Reay sought a concession to fish in all the waterways he had previously accessed from as far north as the Heaphy River and down to the Cascade River in the south. These waterways were variously located in national parks, scenic and wildlife management reserves, and stewardship and ecological areas.

[72] The drift of the report is evident from some key extracts. At an early point the report writer said that it was not his role to assess the sustainability of the eel fishery stock, as this was the function of the Ministry of Fisheries. The paragraph continued:

Where the term “sustainability” is used in this report it is concerned only with the sustainability of ecosystems, including their component species, and other natural resources and processes administered by this department.

I note a comment to similar effect was included in subsequent reports, including those prepared by personnel in the Southland conservatory.

One of the functions of the Department of Conservation is to manage for conservation purposes all natural resources held under the Conservation Act, including eels and their ecosystems ... and the Minister should consider all likely effects on eels when considering concession applications.

The effects are then described as short term, long-term, cumulative, indirect, local and even non-local because the area being fished is linked to other waterways.

[74] Following a review of the available scientific literature the report writer noted:

... although measures such as escape tubes in nets and size limits may be sufficient to ensure that eel populations are not locally extinguished, the Minister of Conservation is responsible for the preservation and protection of natural resources such as eels rather than providing for their sustainable utilisation ... . Given that (a) there is insufficient information available to enable the adverse effects of the application to be adequately assessed, and (b) there are no known measures that would adequately avoid, remedy or

[75] This conclusion was reinforced when the report writer considered the purpose for which the land was managed by DOC. He summarised the statutory purposes relevant to each type of conservation area and concluded that the proposed activity was inconsistent with the purpose for which the various land management types were held by DOC.

[76] With regard to access across public conservation areas to fish adjacent non-conservation waterways, the report writer commented that “in many instances commercial eeling in waterways adjacent to conservation land would directly affect freshwater ecosystems and eel populations on public conservation land”. He therefore considered that access to conservation land should also be declined.

[77] Hence, the major recommendation was that the application to fish for eels, and for access across public conservation land to fish adjacent waterways should be declined. The available information was inadequate to enable the Minister to assess all the effects of commercial eel fishing and nor were there known measures that could adequately avoid, remedy or mitigate the effects of commercial fishing on the freshwater ecosystems and eels in conservation areas. In July 2008 the West Coast conservator accepted the recommendation. Mr Reay’s concession application was declined.

[78] The review report dated August 2009 was written by a different report writer. The tone of the report is quite different to that prepared the previous year. There is reference to a “Species Optimisation Project” recently completed for all threatened fish species. Two main points arising from the project were that there was a 60% chance of a viable eel population in 50 years if protection was successful, and only a

25% chance if there was no large scale management. One suggested action was legislative change to prevent all eel fishing on DOC land.

[79] On the other hand, the report contained some less pessimistic comments. It noted that only 33% of the eel river and lake habitat in ANG16 was managed by DOC, but that the number of longfin eels in this habitat was probably less than 10%

because conservation habitats were in more isolated locations and supported lower eel densities. The report acknowledged that issues surrounding the longfin threat and population status were complex and that although increased management and protection was the national direction, a DOC fish scientist suggested that flexibility was appropriate and that a complete ban on eeling on conservation land may not be necessary. The effects of eel fishing could not be accurately assessed, or quantified, although it was “possible to hypothesise about the potential effects”.

[80] Finally, although a function of DOC was to preserve so far as practicable all indigenous freshwater fisheries, this function should not be determinative. “Uncontrolled” commercial eeling would not be consistent with preservation, but if appropriate conditions were imposed to remedy adverse effects then a concession for eel fishing should be approved. The report writer recommended approval of Mr Reay’s application for a five year permit to commercially fish for eels on the Waiho River to the Bruce Bay area and on the Lower Cascade, subject to conditions. The conditions included a requirement that Mr Reay supply catch records, the days fished, locations and other relevant ecological information to DOC annually. A further condition enabled DOC to impose additional mitigation conditions if evidence indicated that eeling was having an unacceptable or adverse effect on any waterway.

[81] The conservator who had declined Mr Reay’s application in 2008 accepted the recommendation and granted the application on this occasion. I note, however, that the review was conducted with reference to only five locations which Mr Reay wished to fish for the following five years. And, three of these locations (Pyke River, Big Bay and the Upper Karamea River) were not within the West Coast conservancy and were not approved for that reason. The remaining locations on the Waiho and Lower Cascade Rivers were on stewardship land. That said, the general approach adopted by the report writer was, I think, different to that of his predecessor.

[82] Mr Reay made application for further waterways to be included in the concession. In November 2009 further part rivers, some creeks and a tarn were approved as additions to the concession. A further 15 additional locations were

declined, many because they were located in an ecological area where eeling was considered inconsistent with the purpose for which the land was held. Mr Reay took up the amended concession, which remains current until November 2014.

[83] The decision was based upon a comprehensive report dated December 2010. Mr Reay sought a concession for locations on the Pyke River within Mount Aspiring National Park and waterways draining into Big Bay, including the Lower Pyke River within the Pyke Forest Conservation Area. The application also sought access to marginal strip land bordering the Pyke River. Mr Reay considered he required these locations to supplement his West Coast concession and ensure that he had access to sufficient areas to maintain a 10 year rotational fishing system.

[84] With reference to the Mount Aspiring and Pyke Forest areas, the report writer noted at the outset that both were within a world heritage area on account of their outstanding universal value. The Big Bay area had not been commercially fished for

20 years and was considered to have something close to an unharvested eel population. Nonetheless, the population was described as significant to the ecosystem, large eels were considered vulnerable to commercial harvesting and eels generally were the top predator of the ecosystem, so that fishing would have a significant adverse effect.

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.

This paragraph bears a strong resemblance to a paragraph in the August 2009 review

[86] The report writer also considered that permitting eel fishing in both waterways would be contrary to the purposes for which the land was held under the National Parks and Conservation Acts. By contrast, the proposed land-based activities on the marginal strip bordering the Pyke River were not considered contrary to purpose, provided quad bike use was constrained.

1. The Big Bay ecosystem is one of the most pristine lowland freshwater ecosystems remaining in New Zealand with high habitat complexity and biological values of national importance.

2. Each biological value is an integral part of the ecosystem, with eels being the larger biomass of the freshwater community. Removal of this biomass will have significant adverse effects on the values associated with the Big Bay area; the area will not be able to function in the same manner as a natural high value lowland freshwater ecosystem.

3. There is insufficient information available to quantify the significance of the adverse effects of eeling in the location proposed within this application to be adequately addressed; there are no known measures that would adequately avoid, remedy or mitigate those effects of eeling which are known.

Hence, the recommendation was to decline a concession to undertake eel fishing, but grant access to the marginal strip for camping and boating activities to facilitate access to non-conservation waterways. Various conditions were recommended, including that a quad bike could be used on the Big Bay beach but not on the marginal strip land.

[88] Mr Reay responded to the December report, including a claim that the sustainability of the eel population was solely the concern of the Ministry of Fisheries. His views were considered in a revised report, but the recommendations remained unchanged. In March 2011 the recommendations contained in the final report were approved. Hence, in essence the concession application was declined, save for permitting boating and camping activities upon marginal strip land.

[89] A review followed. But in June 2012 the reviewer confirmed the decision reached the previous year. The reviewer concluded:

In summary, I would have arrived at the same decision had I been the decision-maker, based on the information in front of me, including the additional background information in Mr Reay’s letter. The fundamental basis for reaching this conclusion is that the Conservation legislation does not exclude the need for a concession for activities authorised under the Fisheries Act. The focus of the Fisheries Act 1996 is on utilisation of fisheries resources while ensuring sustainability. This is quite different to the conservation and preservation of eel as a natural resource on public conservation land, as required pursuant to the Conservation Act 1987 and National Parks Act 1980. Therefore the effect of commercial eeling in a conservation area is a relevant consideration for a decision-maker when considering an application for a concession. As demonstrated in the officer’s report, the effects [of] commercial eeling would be contrary to the purpose for which the land and waterways in Mount Aspiring Natioanl Park and the Pyke Forest Conservation Area are held.

A failure to give effect to the Treaty of Waitangi (Fisheries Claims) Settlement Act

[90] Mr Withnall argued that DOC substantially derogated from the rights of Māori under the Settlement Act by its approach to concession applications. Such approach invariably meant that the 20% quota entitlement of Māori to take eels in ANG16 was largely frustrated. Counsel characterised this as a mistaken approach contrary to law, and as yet another example of taking into account irrelevant considerations.

[91] The preamble to the Settlement Act 1992 records the relevant background. On 23 September 1992 the Crown and Māori signed a deed of settlement to resolve Māori fishing rights in New Zealand waters. One of several terms of the settlement was that:⁵⁷

⁵⁷Treaty of Waitangi (Fisheries Claim) Settlement Act 1992, preamble, para (l)(iii).

[92] Does DOC's approach to the assessment of concession applications substantially derogate from Māori rights, as contended? Ms Boadita-Cormican submitted that the allegation was misconceived, both in law and in fact.

[93] Mr Withnall’s argument was a variant of that raised in another judicial review proceeding between the New Zealand Fishing Industry Association (Inc) & Ors v Minister of Fisheries.⁵⁸The case concerned snapper quota. The total allowable commercial catch in a North Island quota area was reduced by about 40% prior to the commencement of the 1995-1996 fishing year. Māori claimants argued that the Minister of Fisheries’ 40% decision was invalid for failure to take into account

relevant considerations. The Minister had not explicitly considered the interests of

Māori, who stood to suffer a financial loss of about $14.6m as a result of the catch reduction.

[94]	The Court of Appeal rejected the argument:⁵⁹ In our judgment the implication sought by the Maori appellants cannot be
	made. The evidence is that the Maori negotiators studied the QMS very carefully before deciding to settle their claims in return for quota. The capacity for a reduction has always been inherent in the quota system. No doubt no one anticipated a reduction of the present size, but under the settlement Maori accepted quota with its capacity to go down without compensation and up without cost. Under the settlement Maori became holders of quota along with all other holders. Their rights were in our view no more and no less than those of non Maori quota holders. The Minister was accordingly obliged to give them exactly the same consideration as all other holders of quota. Any other conclusion would be to give Maori a preference, which appropriately Mr Finlayson said they did not seek.
[95]	Obviously, this reasoning cannot be directly applied in this case.	The

relevant background is not a radical reduction in the total allowable commercial catch; rather a contention that by its approach to the assessment of concession applications DOC effectively derogated from Māori’s 20% quota allowance by denying access to waterways in conservation areas. Nonetheless, I consider the snapper case is in point. It confirms that the right of Māori was to receive a 20% share in the total allowable commercial catch; nothing more, nothing less. Even

_{assuming an inability to fully utilise that entitlement because DOC
restricted access}

⁵⁸_{New Zealand Fishing Industry Association (Inc) v
Minister of Fisheries CA82/97, 22 July 1997.}

to waterways within the quota area, does not result in a breach of the Settlement Act. The 20% holding remains intact. Utilisation by Māori of their quota entitlement is a separate issue and not in my view something DOC was required to consider in assessing Mr Reay’s concession application. In short, DOC was performing a different statutory function pertaining to access to, and preservation of, conservation land. Nor was DOC dealing with an application from a Māori quota holder.

[96] Further, Ms Boadita-Cormican rightly pointed out that there is no evidence to support the present argument. Local Māori have not provided evidence concerning under-utilisation of their quota entitlement, although there is general evidence to show that the eel catch in ANG16 has never approached the quota limit. Assuming there was under-utilisation, the reasons for this would require analysis. Waterways in the conservation areas comprise but part of the ANG16 quota area (see [79]). And, ironically, when DOC did consult West Coast iwi in relation to Mr Reay’s application, the need for preservation of the eel population was supported, not increased utilisation of the eel stock. For all these reasons I reject this argument.

Were concession application decisions wrongly based on the sustainability of the eel population?

[97] Mr Withnall contended that even if the Fisheries Act was not a code, the Conservation and related Acts did not confer a power of management of the commercial eel fishery upon DOC, yet the sustainability of the fish stock was central to the assessment of concession applications. DOC's role in relation to the commercial eel fishery was an advocacy one, not a management function. In particular, it was not the function of DOC to “second guess or derogate from the decisions of the Minister of Fisheries” in respect of the sustainability of the eel population and related matters.

[98] The highpoint of the argument was that what in fact happened was that officials, acting under delegated authority, “effectively substituted their own view of what, if any, total allowable commercial catch of eels there should be in ANG16 ...”. Thereby decision-makers derogated from the rights of quota holders to take their annual entitlement by denying access to conservation waterways. Further, he submitted there is no overlap between the respective ministers in relation to their

management powers. The Minister of Fisheries’ powers cover commercial fishing in New Zealand waters, save for the non-commercial freshwater fishery and the commercial whitebait fishery. These are subject to the general control of the Minister of Conservation both within and beyond the conservation estate. Hence, counsel submitted that Parliament had “carefully delineated the boundaries of the respective areas of responsibility”. DOC's assessment of concession applications for the eel fishery was contrary to the statutory regime. It was abundantly clear from the documentary evidence that the major factor influencing concession decisions was the perceived potential effect on the eel population and habitat, when these were issues “peculiarly and exclusively within the province of the Minister of Fisheries”.

[99] For DOC, Ms Boadita-Cormican resisted these various contentions. She maintained there were two management regimes which operate in parallel. Conservation management lies with DOC, and the evidence demonstrated that decision-makers properly took account of relevant conservation considerations in their assessment of concession applications.

[100] I am in no doubt that DOC did assess the sustainability of the eel fishery in the course of assessing concession applications. The paragraph concerning the meaning of “sustainability” in the 2008 report on Mr Reay’s application (see [72]) contains, I think, a form of sophistry which was then adopted by subsequent report writers. To assess “the sustainability of ecosystems, including their component species” DOC was bound to consider the sustainability of the eel population within its management areas. DOC's functions (see [26]) and the broad definition of “conservation” and related concepts in the Conservation Act (see [27]) required as much. Hence, there was no need for report writers and decision-makers to be coy in acknowledging that the sustainability of the species was an aspect of valid concern.

[101] The point of difference between the Ministry on the one hand, and DOC on the other, is the purpose for which, or the context in which, they were each required to consider and assess the eel population. The Ministry of Fisheries has a statutory obligation to manage the utilisation of fishery resources while ensuring their sustainability. This is the very purpose of the Fisheries Act (see [16]). DOC, by contrast, has a preservation and protective function. Relevantly in the present

context it must manage conservation land and resources to preserve the indigenous

[102] Does this mean that the respective regimes do not operate in parallel? I do not think so. There remains a separation of purpose, despite the similarity of subject matter. And in the end result, the Ministry’s focus and concern is the sustainable utilisation of the fishing resource itself, whereas the Department has a broader mandate, being the conservation of land and all other resources under its management for the benefit of present and future generations.

[103] The respective statutes also demand, I think, a different approach to the performance of these functions. The Ministry must act on the best available information, albeit cautiously, and not use an absence of information to forestall action (see [18]). DOC, however, may decline a concession application if the available information is insufficient to enable a proper assessment of effects, including potential effects (see [34] and [35]). Hence, there is something of a tension in relation to the functioning of the parallel regimes, one being proactive, the other more cautionary.

[104] Mr Withnall submitted that the reasoning of DOC decision-makers was flawed. My attention was drawn to numerous passages in various documents said to demonstrate that report writers had trespassed into the domain of quota management. I do not accept this.

[105] In my view DOC understood, and applied, its mandate to protect and preserve the land and natural resources within its management areas. That said, there is evidence that DOC staff encountered difficulty in processing concession applications for commercial eeling. For example, in May 2004 a report writer wrote to a colleague in the Ministry of Fisheries stating:

I am still drafting reports on these applications, and I'm struggling to come up [with] appropriate special conditions to avoid/remedy/mitigate the potential effects on eels and freshwater ecosystems in the conservation areas applied for. I am concerned that the quota system will not give enough protection to eels in DOC areas, as it seems that there is currently nothing in place to prevent fishers taking the majority of eels from individual rivers ...

[106] But there is also evidence to show that DOC correctly understood its function from as early as 1994. A document entitled “Position Statement on Freshwater Eels” dated 4 March 1994 from the head office of DOC included this as to the current position on commercial eel fishing in conservation areas:

A person with a commercial eel fishing licence issued under the Fisheries Act can fish on land of all tenures, but is subject to other legal requirements or land-owner rights. In cases where the DOC is the “land owner”, it must apply the law, and it maintains the discretion to make decisions about the effects that commercial fishing may have on that land and its values. Where a statutory consent is required, such consents must be legal, fair and reasonable given the circumstances and information available.

DOC chooses to take a precautionary approach to allowing extractive commercial activities on conservation areas under its care. In assessing applications to commercially harvest eels, it must take into account whether the waters to be fished are legally part of the conservation area and issues relevant to the direct and indirect effects of that purpose on the area concerned. Where there is insufficient information to show that the activity would not affect conservation values, the option to decline access remains.

[107] For these reasons I do not accept that DOC's approach in assessing Mr Reay’s concession applications was mistaken, but nor do I doubt the genuineness of Mr Reay’s belief that his applications were unfairly assessed. The operation of the parallel regimes may well give rise to the appearance that quota rights were given with one hand, but taken away with the other. This, however, is an unavoidable product of the somewhat subtle division of responsibilities between the Ministry of Fisheries and DOC.

Did DOC otherwise err in the course of its assessment of the concession applications?

[108] Four matters were advanced by Mr Reay which I will consider under this heading. Each concerns an aspect of DOC's requirements or approach to the processing of concession applications.

Could Mr Reay be required to file separate applications for different conservancies?

[109] Mr Reay filed a single application for a concession to fish conservation waterways throughout the ANG16 quota area. When he supplied maps to better identify the location of the waterways, Mr Reay was informed in July 2000 that his application would be assessed at Hokitika in relation to the West Coast conservancy, but in Invercargill in relation to waters in the Southland conservancy. Mr Withnall submitted that DOC acted unlawfully in requiring his client to file a separate application in Invercargill. Under Part 3B of the Conservation Act the power to

grant concessions is vested in the Minister⁶⁰and s 17R provides that applications

may be made to the Minister. Provided an application is complete, the Minister must consider it.⁶¹

[110] Mr Withnall accepted that DOC may adopt whatever internal management and organisational structure it chooses. However, there is no such thing in law as a conservancy. The word is not to be found in the legislation. And, in light of the statutory scheme, Mr Reay was required to make application to the Minister and he/she was obliged to consider the application, provided it contained the required

[111] Ms Boadita-Cormican focused upon the utility of the conservancy structure. The Director-General of Conservation has “all powers that are reasonably necessary or expedient to enable the Department to perform its functions”.⁶³It was lawful and appropriate for DOC to establish a conservancy structure. And, the requirement for Mr Reay to file a separate application with respect to the Southland conservancy made “no material difference” to the way in which the application was processed. Knowledge relating to the Southland conservatory area lay with staff in Invercargill. Mr Reay’s application required assessment both in Hokitika and Invercargill.

Alternatively, even if the requirement to file separate applications was unauthorised, there was no utility in granting a declaration because reorganisation of the DOC

Michael Slater, a Director of Conservation at Hokitika, confirms that a new organisational structure came into effect in 2013, resulting in disbandment of the previous conservancy structure.

[112] In substance I accept the applicant’s argument. While I agree that the Director-General was at liberty to put in place a conservancy structure, this could not override the statutory requirements in Part 3B. Mr Reay was entitled to file a single application to the Minister. How that application was processed by DOC was an internal management issue. No doubt it made good sense to separate Mr Reay’s application into two parts, and have those staff members best placed to assess the separate parts do so. But there was no basis in law to require Mr Reay to file a further application.

[113] Should a declaration be made? I consider that the above finding is sufficient vindication. The conservancy structure no longer exists. Granting a declaration would serve no useful purpose, but Mr Reay has succeeded in relation to this issue.

[114] The plaintiff’s argument was that DOC acted unlawfully in requiring him:

(a) to accept liability for the estimated costs of processing his Southland application before the application would be further processed, and

[115] It is evident that the second limb of the argument cannot succeed. The document sent to concession applicants, headed “Acknowledgement of payment of costs” included this:

I acknowledge the estimate provided by the Department ... and my obligation to pay this amount within 28 days of the Department’s invoicing me for it, regardless of whether or not the application is approved, or declined.

Invoices were not sent until after a concession decision was reached. Hence, cost recovery occurred after the event, not immediately after the acknowledgement form was signed.

[116] Section 60B empowers the Director-General to recover certain costs. After a decision-maker, including the Minister, has considered a concession application, whether it is granted, refused or is not finally concluded, the Director-General may in his discretion require any person to pay all or part of the direct and indirect costs

_{of dealing with the application.}⁶⁴_{If the
Director-General so decides:}⁶⁵

(c) [the applicant] shall, within 28 days of receiving from the Director- General a written demand in that behalf, pay those costs or that part accordingly; and

(d) the Director-General may, on behalf of the Minister, recover those costs or that part as a debt due to the Crown by [the applicant].

[117] Further, s 60B(4) provides that in any context where the Director-General may effect recovery of costs, the decision-maker shall:

(c) the [applicant] is informed of the general effect of the subsection in relation to the action or thing applied for or requested; and

(d) until the [applicant] has been so informed, no further costs to the Department are incurred other than the cost of so informing the [applicant].

The applicant may seek a “best estimate of the costs likely to be required”,⁶⁶but DOC may refuse to give an estimate unless paid the reasonable cost of its preparation⁶⁷and no person shall be bound by an estimate provided by DOC.⁶⁸

[118] Against this background Ms Boadita-Cormican submitted that there was nothing unlawful in DOC's approach. The acknowledgement form gave effect to DOC's obligation to take all reasonable steps to ensure that an applicant understood

_{the cost implications of the concession application. DOC was proactive,
in that it}

gave a best estimate of the likely costs without a request to do so. And, “as a matter of courtesy” processing costs were not incurred until the acknowledgement was signed, thus providing the applicant with the opportunity to withdraw the application.

[119] To my mind the essential issue is whether DOC may require an applicant to accept liability to pays costs and defer the processing of an application until this is done. Counsel said this occurred as a matter of courtesy to provide the applicant an opportunity to withdraw the application before it was too late. But, is this consistent with the statutory scheme? Part 3B enables an applicant to apply for a concession, in which case the Minister “shall” consider the application, so long as it is complete. This obligation is suspended to the extent that DOC must take reasonable steps to ensure the applicant is informed of the effect of the cost recovery provisions before processing costs are incurred. But I do not accept that DOC may require an acceptance of liability before processing is commenced. The statutory provisions do not contemplate as much, although I think it is implicit that when an applicant requests a costs estimate, processing may be deferred at least until the estimate has been provided and there has been no demur.

[120] The acknowledgement form as drafted at the relevant time required the applicant to acknowledge “an obligation to pay [the estimated] amount” within 28 days of invoicing. The Act does not permit this, indeed s 60B(7) provides that an estimate is non-binding. More generally, the terms of the form are heavy-handed, particularly as the applicant’s signed acceptance of the form is required. The approach taken is the antithesis of a statutory obligation to simply inform applicants of “the general effect” of the cost recovery provisions, and supply a best estimate of the likely costs if requested.

[121] I also note that s 60B(3) confers on the Director-General an “absolute discretion” to waive payment of the sum otherwise required to be paid pursuant to this section”. This is not drawn to the attention of applicants.

The DOC Acknowledgement of Payment of Costs Form dated in 2010 is unlawful in that it purports to secure an acknowledgement of liability to pay a costs estimate and does not fairly inform recipients of the general effect of the costs provisions.

Was a concession required to use marginal strips to access non-conservation waterways?

[123] To recap, in relation to the Southland conservancy DOC granted a concession for camping and boating activities on Pyke River marginal strip land to enable Mr Reay to undertake eeling on adjacent non-conservation land. This decision was reached in March 2011, and confirmed on review in June 2012 (see [11]). It concerned the marginal strip to the Pyke River in a conservation area. Mr Reay considers that as a member of the public he was entitled as of right to use marginal strips to access adjacent bodies of water. This issue involves a question of statutory interpretation.

24E(3) or section 24G for the purposes specified in section 24C; and includes any part of any such strip.

(1) There shall be deemed to be reserved from the sale or other disposition of any land by the Crown a strip of land 20 metres wide extending along and abutting the landward margin of—

(b) the normal level of the bed of any lake not subject to control by artificial means; or

[126] Section 24E(3) provides that “land taken by the Crown in exchange for any marginal strip shall be deemed to be reserved as marginal strip”. And, s 24G(2) relevantly provides:

Where ... the course of any river or stream is altered and the alteration affects an existing marginal strip, a new marginal strip shall be deemed to have been reserved simultaneously with each and every such alteration.

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

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

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

[128] Mr Withnall submitted that given the terms of s 24C(b) DOC could not require Mr Reay to hold a concession authorising his use of a marginal strip to facilitate commercial eeling in non-conservation waterways. He suggested DOC's approach was “preposterous”, given the terms of the section. Ms Boadita-Cormican disagreed. She submitted that marginal strips comprise conservation land.⁶⁹DOC

must protect marginal strips and their natural values.⁷⁰Hence, the question is

whether the purpose for which Mr Reay sought to use the marginal strip was a commercial activity (see [30]). If so, a concession was required under s 17O(2) of the Act. Section 24C(b) did not avail Mr Reay because it contemplates the public use of marginal strips to access waterways, but does not govern use for commercial

[129] I agree with Ms Boadita-Cormican’s analysis. In short, s 24C is a general provision which defines the purposes of marginal strips. Section 17O is a specific provision which governs when a concession is required. No activity (a trade, business or occupation) may be carried out in a conservation area unless authorised by a concession. Marginal strips are conservation areas held for conservation

Was DOC dilatory, unfair and did it act in bad faith in considering Mr Reay’s

92. That if the defendant was authorised by law to require the plaintiff to obtain such concessions or any of them (which the plaintiff denies) then the defendant, by his or her delegates, when considering and deciding the plaintiff’s applications, acted unfairly and in bad faith and in breach of the defendant’s obligation under s.17T(1) of the Conservation Act 1987 to “consider every complete application for a concession that is received by him or her” by delaying and failing to consider the plaintiff’s applications promptly and with appropriate diligence.

a. The policy within the department of not granting concessions to allow commercial eeling on waters within ANG 16 on or adjacent to land held under the Conservation Act.

c. The attempts pleaded herein to stop the plaintiff exercising his rights as a quota holder

d. The threats to prosecute the plaintiff for taking eels without a concession whilst failing or refusing to process his application for many years

e. The attempts to seize the eels caught by the plaintiff in the waters of the Pyke River and the threats to prosecute him for fishing there when the documents in the Department’s possession showed the bed of the Pyke [R]iver is not conservation land.

[131] The written submission in support of this part of the claim was succinct, to say the least. Counsel submitted that each of the particulars was amply supported by

_{the references to the evidence previously referred to or cited. In
oral submissions}

there was no further reference to the evidence, save to the extent factual issues had been canvassed in relation to earlier aspects.

[132] Ms Boadita-Cormican filed a written submission which did respond to the particulars. Her exposition demonstrated, I think, that a number of the particulars had fallen by the wayside by virtue of the determination of previous aspects of the claim. For example, I am satisfied that the section of the judgment dealing with whether DOC wrongly based application decisions on the sustainability of the eel population (see [97] to [107]) demonstrates that DOC did not pursue a blanket policy to refuse concessions within ANG16.

[133] I am also of the opinion that the particulars concerning threats to prosecute Mr Reay for taking eels without a concession, and to seize eels caught by him in the Pyke River, while aspects of his relationship with DOC, are not relevant to this head of the claim. The substantive complaint is that when considering and deciding the concession applications DOC acted unfairly and in bad faith, and also failed to make a determination within a reasonable time in breach of s 17T(1) of the Conservation Act. The threats to prosecute occurred while concession applications were under consideration, but I do not understand them to have influenced the decision-making process. Nor am I persuaded that there is evidence sufficient to demonstrate that DOC officers acted unfairly or in bad faith. These are quite serious allegations, which needed to be substantiated by evidence and argument. I do not have this.

[134] The section does not stipulate a timeframe within which concession applications are to be processed and a decision reached. This would be difficult, given the need to consult, obtain expert advice and publically notify at least some concession applications. Nonetheless, a necessary implication of the statutory scheme is that applications should be considered and decided within a reasonable time. Whether this happened in Mr Reay’s case seems to me to be the central, and remaining, aspect to be considered.

[135] DOC advised Mr Reay of the need to obtain a concession in October 1998. He lodged an application about a month later. Another four commercial eel fishers also lodged applications and it was agreed that these would be processed together,

18 months on, DOC advised the applicants that Treaty issues, evaluation of the Ministry of Fisheries/DOC interface and the complexity and extent of the ecological issues meant that decisions on the respective applications would be delayed.

[136] In September 2001, about another 18 months later, DOC granted the applications of the other fishers, but a draft report on Mr Reay’s application was not provided to him until March 2002. The proposed conditions were unacceptable to Mr Reay and, despite negotiations, a impasse had developed by October that year. DOC advised that work on the concession application would cease. Four years had passed to this point, which for analysis purposes I shall term the first period.

[137] During the next period of almost four years to September 2006 the application was effectively on hold. Interactions occurred, including those between intermediaries acting on behalf of Mr Reay and DOC, some at a ministerial level (see [12]). The fundamental debate concerned the sustainability and/or preservation of the eel population – whether such issues were within the exclusive domain of the Ministry, or whether it and DOC were subject to parallel statutory responsibilities. There were other more practical issues relating to the processing of Mr Reay’s application as well.

[138] The third period was from about October 2006 to July 2008, say one year nine months, during which processing of Mr Reay’s application was completed, a draft report was provided, feedback was obtained and the concession application was refused by the West Coast conservator.

[139] The final period was from April 2009, when Mr Reay sought a review, until November 2009 when he obtained a five year concession to fish a number of South Westland waterways. This period included a shift in approach on DOC's part (see [80]-[81]) and this, in my view, facilitated a compromise which Mr Reay ultimately accepted. In total 11 years elapsed from the lodging of Mr Reay’s concession application until its final determination in relation to waterways within the West Coast conservancy.

[140] I need not analyse the timeframe relevant to the separate application processed at Invercargill, since this would not alter the general conclusions I have reached. I accept Ms Boadita-Cormican’s submissions concerning various factual circumstances which contributed to the 11 year delay. She rightly stressed that Mr Reay occasioned delay in a number of ways. Initially, his application was inadequately particularised with reference to the exact location of the waterways he wished to fish. It took time for this to be remedied. When DOC wished to clarify issues with Mr Reay, he often could not be reached in the remote locations in which he worked. Further, I think Mr Reay probably acquiesced to a degree in DOC's delays, particularly in the years to 2006 when he was engaged in contract work for the Department. Then there were the ongoing debates concerning liability for processing fees, the split of the application between two conservancies and the dispute about the appropriateness of concession conditions required by DOC. Mr Reay’s communications with DOC were typically spirited, but also lengthy.

[141] Even after according weight to these features, I am of the view that DOC did not process Mr Reay’s concession application within a reasonable timeframe. Eleven years is an extraordinary time period for a final decision to be reached in relation to an application for a concession to pursue a commercial activity on conservation land. I have the clear impression that the DOC officers responsible for processing the application were indecisive. The responsibility divide between the Ministry of Fisheries and DOC was not well managed when eels were brought under the quota system in late 2000, despite the fact that a head office report in 1994 correctly summarised the statutory divide (see [106]). Finally, given the way in which this aspect was presented, I cannot quantify the extent or effect of the delay, other than to say that both were substantial.

[142] Should a declaration be granted? Relief is, of course, discretionary. But, where substantive grounds for relief are made out, it is well recognised that strong reasons are required before a declaration should be declined.⁷²But, in this case I think there is real difficulty in framing an appropriate declaration. The decision itself is not assailable, only the time taken to consider and reach it. While, as I have

_{endeavoured to explain, I accept there has been unreasonable delay, it
is difficult to}

encapsulate the findings in terms of a declaration. I do not think I can improve on the factual findings made above. This is not to detract from the vindication to which the plaintiff is entitled.

[143] The application for judicial review has succeeded in three respects. DOC was wrong to require separate applications to be filed with different conservancies, although this finding is now of academic importance. The document headed “Acknowledgement of Payment of Costs Form” dated in 2010 was unlawful in that “it purports to secure an acknowledgement of liability to pay a costs estimate and does not fairly inform recipients of the general effect of the costs provisions”. Secondly, the contention that DOC did not process Mr Reay’s concession application within a reasonable time is made out, for the reasons contained in [140]-[141].

[144] Costs are reserved. Memoranda may be filed and exchanged within 20 working days of the date of this judgment, and replies, if any, within a further

BETWEEN	BRUCE REAY Plaintiff
AND	THE MINISTER OF CONSERVATION Defendant

Hearing:	7-8 July 2014
Appearances:	C S Withnall QC for the Plaintiff A Boadita-Cormican and S J Ritchie for the Defendant
_Judgment:	_{7 August 2014}

High Court of New Zealand Decisions

Reay v Minister of Conservation [2014] NZHC 1844 (7 August 2014)