LUXTON WELCOMES COURT OF APPEAL SNAPPER DECISION

  • John Luxton
Fisheries and Aquaculture

New Minister of Fisheries, Hon John Luxton, today welcomed the Court of Appeal judgement on quota changes in the snapper fishery from North Cape to East Cape.

This judgement follows an earlier ruling from the High Court which found in favour of the Crown but was then appealed by various industry parties.

Mr Luxton said today," I welcome this decision. This further decision from the Courts is very positive for the sustainability of New Zealand's valuable fish stocks.

"While the Court has found against the Crown on a technicality regarding the former Minister reducing the quota from 4938 to 3000 tonnes, the appeal court has found for the Crown on all other substantive issues relating to Maximum Suatainable Yield (MSY), property rights, proportionality and Maori issues. This has clarified for all parties the powers of the Minister and rights of others. (see comments below)

"Because of legal action, commercial fishermen have continued to fish the fishery at the 4938 tonne TACC level since 1995. We now can move on to setting the TACC for Snapper One this year, bearing in mind the courts comments and useful guidance.

"I look forward to continuing to sustainably managing New Zealand's fishery for the benefit of all New Zealanders. This judgement is very positive and clarifies the tools available to ensure that we have a healthy fishery as we move towards the next millenium."

SNA 1 JUDGMENT

The decision was delivered by Tipping J on behalf of a full court of 5 judges.

On one point of law the Court set aside the Minister's decision so the TACC (Total Allowable Commercial Catch) remains at 4,938 t. The point of law related to the obligation of the Minister to consider whether a reduction in the level of fishing could be achieved by the Crown with other means to obtaining quota rather than just reducing the TACC. The Court found that there was insufficient evidence that the Minister had adequately considered this point before making the reduction to 3,000t. (see pp 7-12)

However, on the substantive points of interpretation of the Fisheries Act 1983 and 1996 the Court has upheld the Crown's arguments and dismissed those of the appellants.

Maximum Suatainable Yield (MSY)

The Court confirmed that there is a statutory obligation on the Minister to manage to Bmsy both under the Fisheries Act 1996 and the international obligations of the Government.

In short, the Minister now has a clear obligation to move the stock towards MSY and when deciding upon the timeframe and the ways to achieve the statutory objective, the Minister must consider all relevant social, cultural and economic factors. (p14)

...we are of the preliminary view that the economic factors of which s 13(3) speaks need not necessarily be confined to matters directly affecting the fishing industry. In our view wider considerations affecting the national economic interest are capable of being regarded as relevant. MSY is itself directed at the national interest as well as at sectional interests and this supports the view that national economic factors can be relevant to a TAC assessment under s 13. (p15)

Property right

The Court upheld the findings of McGechan J that the property right is not absolute and is defined in terms of the statute creating it.

While quota are undoubtedly a species of property and a valuable one at that, the rights inherent in that property are not absolute. They are subject to the provisions of the legislation establishing them. That legislation contains the capacity for quota to be reduced.

There is no doctrine of which we are aware which says you can have the benefit of the advantages in a species of property but do not have to accept the disadvantages similarly inherent. (p16)

Proportionality

The Court rejected the argument that the proportion of the TAC allocated to non-commercial interests and commercial interests should remain constant.

We can see no reason why either as his primary purpose or as a consequence of some other purpose the Minister should not be able to vary the ratio between commercial and recreational interests. To do so is within his powers. (p17-18)

The Court also held on this point that the Minister could take account of population growth and increase is necessary in determining the level of recreational catch to be allocated. (see p18)

Maori appellants

All the arguments presented by the Maori appellants have been dismissed.

The Court expressly held that the reduction in quota was not a breach of the Deed of Settlement and further held under the Deed of Settlement Maori have the same rights as other quota holders and no more.

Under the settlement Maori became holders of quota along with all other holders. The rights were in our view no more and no less than those of non Maori quota holders. (p20)

The idea that the settlement is any less just, honourable and durable should Maori quota be reduced, is unpersuasive.

In our judgment, Maori cannot claim to be entitled under the Settlement Act to some kind of additional threshold or onus before their quota is reduced. (p21)