Omunkete Fishing (Pty) Ltd v Minister of Fisheries

IN THE HIGH COURT OF NEW ZEALAND
WELLINGTON REGISTRY
CIV 2008-485-1310

UNDER the Judicature Amendment Act 1972
IN THE MATTER OF an application for judicial review

BETWEEN OMUNKETE FISHING (PTY) LIMITED
Plaintiff

AND THE MINISTER OF FISHERIES
First Defendant

AND THE MINISTER OF FOREIGN AFFAIRS AND TRADE
Second Defendant

Hearing: 20 June 2008

Appearances: P David for Plaintiff
B Keith and G Van Bohemen for First and Second Defendants

Judgment: 23 June 2008 at 4 pm

JUDGMENT OF MALLON J
(Reasons for interim order)

Introduction

[1] The plaintiff is the registered owner of a fishing vessel, the Paloma V. The Paloma V is presently a Namibian flagged vessel. On Thursday, 19 June 2008, the plaintiff applied for an interim order under s 8 of the Judicature Amendment Act 1972 declaring that the defendants take no further action in relation to information and documents obtained by the first defendant from the Paloma V until further order of the Court. The urgency arose because the second defendant intended to report on Friday, 20 June 2008 to the Commission of the Convention on the Conservation of Antarctic Marine Living Resources (CCAMLR) in relation to alleged contraventions of CCAMLR by the Paloma V on the basis of that information and documents.

[2] By a minute issued on 19 June 2008, I enquired whether the defendants would be willing to undertake not to make this report for a period of, say, seven days to enable the application for interim orders to be the subject of full argument on a day next week. At a telephone conference convened later that day Mr Keith advised that the defendants were not willing to provide that undertaking. This was because an undertaking would put New Zealand in breach of an international obligation to make the report within 30 days of obtaining information of CCAMLR contraventions. To comply with its obligation, the latest the report could be provided was 6 pm New Zealand time on 20 June 2008. (The report needed to be received in Hobart by 5 pm 20 June 2008.)

[3] The interim orders application therefore needed to be heard and determined before 6 pm New Zealand time. The application was adjourned to 2 pm on 20 June 2008 for determination. In the meantime, the second defendant agreed to make enquiries with the Secretariat of CCAMLR in Hobart as to whether there was a precedent for the granting of an extension to file a late report and as to the consequences of a late report.

[4] The hearing of the application proceeded on the afternoon of 20 June 2008. Having heard from counsel I granted an interim order at approximately 5 pm New Zealand time in order to preserve the plaintiff’s position. I directed that an urgent substantive hearing is to take place prior to 1 July 2008. The order was in these terms:

Order declaring that the second respondent ought not to take further steps in relation to the information and documents obtained by the first respondent from the Paloma V and any report on certain matters which the second respondent intends to refer to the Commission established under the Convention on the Conservation of Antarctic Marine Living Resources until further order of the Court.

[5] I said that I would give a summary of my reasons with a full judgment to follow. My summary was in these terms (some minor grammatical errors have been corrected):

I am proceeding on the basis that there is an arguable cause of action because there is an argument that the Part 6A regime applies and on the basis of the limited but very helpful submissions from both sides, it is not something that I feel able to resolve, or at least to say that the plaintiff has no prospects at all. So that raises the discretionary factors I need to take into account.

The factors against making an interim order are firstly delay. The plaintiff has left it until the “11th hour” to make this application and, had it acted to bring this proceeding on or about 3 June, a substantive hearing could have been determined with sufficient time to enable New Zealand to comply with the 30 day requirement.

Secondly, the interim order, in declaring that the second respondent ought not to act on the information, does apparently put New Zealand in breach of an international obligation, and I accept that that is something that the Court should not do lightly.

Thirdly, there is an argument that the order is futile in that information in largely the same terms has already been provided by New Zealand to Australia and the United States and accordingly they in turn now have an obligation under CCAMLR to make a report.

The next matter is that there is a process under which the substantive issues raised by the report will be determined, and in the course of that New Zealand will provide any updated information it received including any order or declaration from this Court that the information was obtained illegally under New Zealand domestic law. Also Namibia has the opportunity to make submissions and it is the state legally responsible for the vessel.

Then the other factor is that my initial impression of the argument is that the plaintiff’s case may not be a strong one. But that is a preliminary view only and could change by the presiding Judge, whoever that is, at the substantive proceeding, obviously in light of the arguments then heard.

On the other hand, factors in favour of an interim order are firstly that to some extent the delay is explained by the information provided to the plaintiff not being fullsome. It was only when the affidavits were filed in response to this proceeding that it became clear to the plaintiff the basis upon which the search was conducted and, it says, the reasons why that search was unlawful. The next factor is that it is unclear what specific prejudice would arise from New Zealand breaching an international obligation. There are no specific sanctions for this particular breach and in making this order the information can still be acted upon either via a report from Australia or the United States or a late report from New Zealand. The information provided to me today indicates that reports have in most cases been accepted when they have been late in filing and the Secretariat has indicated that to some extent – although it is unclear whether it will be sufficient – there is the ability to forewarn the Commission members of the situation that New Zealand has been placed in by the interim order.

Then lastly, the search – from which this information was obtained – was conducted pursuant to New Zealand domestic laws. It is pursuant to a domestic search that New Zealand now has the information upon which it proposes to act within the 30 day period. The plaintiff wishes to, and has the right to, challenge that search as unlawful. If that challenge takes place after the report is given then the remedy it seeks – namely that the defendants take no further action on the information it obtained – is lost. The process that is underway is directed towards the substantive information obtained not, at least so it appears, the lawfulness of how the information was obtained.

So balancing all of those factors, I conclude that the interests of justice favour a short interim order.

After discussion with counsel the interim order was amended to add:

Save as to notifying CCAMLR that it has obtained information which it considers relevant to CCM 10-06 that it is unable to provide within the 30 day time period because of a direction of the Court.

[6] This judgment now records in full the reasons for my decision.

Details about CCAMLR

[7] Forty-four states, including New Zealand and Namibia, are member states under CCAMLR. Through CCAMLR the member states engage in collaborative regulation of fishing and other activities in the Antarctic and Southern oceans. Regulation has difficulties with the result that there has been substantial illegal, unreported and unregulated (“IUU”) fishing in the southern ocean. The effect of IUU fishing for toothfish has been to substantially exceed sustainable catch levels agreed among the CCAMLR states. In response CCAMLR member states have adopted a series of conservation measures.

[8] Conservation measure 10-03 requires member states to inspect any vessel that enters their ports carrying toothfish. The purpose of the inspection is to determine if the vessel carried out harvesting in accordance with CCAMR conservation measures. To facilitate an inspection advance notice of entry into port is to be given together with a declaration that the vessel has not engaged in or supported IUU fishing. If there is evidence that the vessel has fished in contravention of CCAMLR conservation measures there are various requirements including that the state “shall promptly provide the Secretariat with a report on the outcome of each inspection”.

[9] Conservation measure 10-06 provides for a CP-IUU Vessel List. To be listed on the CP-IUU Vessel List there must be evidence of breaches in relation to CCAMLR conservation measures. Where a member state “obtains information” that a vessel flying the flag of another member state has engaged in such activities “it shall submit a report containing this information, within 30 days of becoming aware of it”.

[10] There is no express procedure provided for obtaining an extension to the 30 day period. The Executive Secretary, who has a 26-year involvement with CCAMLR, confirms that the Secretariat has no power to grant an extension. He advises that where reports are submitted late “usually what happens is that the information is submitted whenever and the Commission decides collectively to accept or not”. He says that “[i]n most cases this means that the information is accepted, particularly if it pertains to the implementation of a conservation measure”. He goes on to say that the affected member state may block the acceptance of the information before it is considered by the Commission. He suggests that before the due date for the report New Zealand could forewarn the Commission of the situation it finds itself in as a result of the legal proceedings as this “could be argued as an indication of just intent”. He says that the Secretariat would communicate the circumstances to all CCAMLR members at New Zealand’s request.

[11] The report to CCAMLR sets in train a four month process that may lead to the vessel being placed on the CP-IUU Vessel List. Under this process member states have an opportunity to present whatever information they wish to in support of or against the listing of the vessel on the CP-IUU Vessel List. CCAMLR provides that decisions “on matters of substance shall be taken by consensus”. Matters of substance are not defined by CCAMLR but Mr Van Bohemen advises (from the Bar) that in practice all decisions are made by consensus. The result is that any one member state can block the listing of a vessel on the list.

[12] CCAMLR, and its conservation measures, is a notified arrangement and measure as referred to in s 113C of the Fisheries Act 1996. This means that there are powers of inspection by New Zealand high seas fishery inspectors in relation to foreign vessels as set out in Part 6A of that Act. The events leading to this application

[13] An affidavit filed on behalf of the plaintiff advises that the plaintiff is a joint venture company which is owned by Mabenal, SA (49%) and Gongala Fishing Joint Venture (Pty) Ltd (“Gongala”) (51%). The affidavit states that in or about October 2007 the plaintiff purchased the Paloma V for 7 million euros. It further states that in October/November 2007 Gongala made application to CCAMLR to catch toothfish in sectors 58.4.1, 58.4.2, 58.4.3b and 88.1. Although this does not seem to be stated in the evidence, I understand that this application was granted and that the plaintiff proceeded to catch toothfish in the Antarctic or Southern oceans in the 2007/2008 fishing season.

[14] Section 113(1)(a)(ii) of the Fisheries Act 1996 prohibits any person from possessing fish, in New Zealand or in New Zealand waters, on a vessel that is not a New Zealand ship, where that fish is caught outside New Zealand waters, unless, before entry into New Zealand’s waters, the person has obtained the approval of the Chief Executive of the Ministry of Fisheries to possess the fish. On 6 May 2008 the plaintiff applied for approval under s 113(1)(a)(ii) because it wished to land fish in New Zealand caught outside New Zealand waters. The application required the plaintiff to have a permit or authorisation to catch the fish issued by the vessel’s flag state or a relevant authority if operating within another jurisdiction.

[15] The application also asked whether the plaintiff had engaged in fishing without a high seas permit, or in a manner resulting in a high seas permit being suspended or revoked, or whether the plaintiff or any other party materially involved in the fishing operation had breached the fisheries laws in any jurisdiction. The plaintiff answered no to these questions.

[16] The application also asked whether, to the best of the plaintiff’s knowledge, the vessel had been used to breach the fisheries laws in any jurisdiction. The plaintiff answered no to this question.

[17] The application required a declaration (amongst other things) that the information was true and correct. The declaration was given by a director of the plaintiff.

[18] On 9 May 2008 an approval was granted under s 113(1)(a)(ii).

[19] The plaintiff advised the Ministry of Fisheries of the Paloma V’s estimated date and arrival time. It duly arrived at the port of Auckland at 9 am on 16 May 2008. The plaintiff advised that the Paloma V was carrying 98 tonnes of toothfish, 83 tonnes of nurse shark and 50,000 litres of liver fish oil. On that day Ministry of Fisheries inspectors went on board the Paloma V and removed various documents for inspection.

[20] An affidavit filed by the investigations manager employed in the Ministry of Fisheries advises that the inspection was carried out under s 199(1) of the Fisheries Act and the documents were removed pursuant to s 206 of the Fisheries Act.

[21] Section 199(1) provides:

(1) In the course of the enforcement and administration of this Act, a fishery officer may, at any reasonable time,—

(a) Stop, enter, or pass across any land in order to enter and examine any vessel or vehicle, or enter and examine any premises or place, or examine any record, document, article, and any gear, apparatus, device, or contents of any kind therein:

[22] Section 206 provides:

(1) In exercising powers under this Act, a fishery officer may—

(a) Make or take copies of any record or document, and for this purpose may take possession of and remove from the place where they are kept any such record or document, for such period of time as is reasonable in the circumstances:

[23] The investigations manager advises that the inspection was to check compliance with the Fisheries Act. It is said that it was to verify, for example, where the vessel had fished and what species had been taken; that the fishing operations had been duly authorised and conducted in accordance with those authorisations; that no fishing had occurred within the New Zealand EEZ; and that the vessel had acted in accordance with the s 133 approval conditions. The affidavit goes on to state:

As the Paloma V was carrying toothfish, the other two fishery officers also conducted an inspection for the purposes of CM 10-03. This inspection was conducted separately from the examination for Fisheries Act purposes.

[24] On 22 May 2008 a director of the plaintiff was interviewed by Ministry of Fisheries officers. The affidavit from the investigations manager says that during this interview it appeared to the officers that the director may have committed an offence against s 230 of the Fisheries Act (making false or misleading statements or omitting material information in an application under the Act) in that he may have included incorrect information and omitted information in the s 113 application. The investigation manager advises that the director was therefore cautioned in accordance with the New Zealand Bill of Rights Act and the Fisheries Act.

[25] There is a general power to revoke an approval in s 305A of the Act. (The defendants also refer to ss 13 and 15(a) of the Interpretation Act 1999.) On 23 May 2008 the first defendant revoked the approval issued under s 113(1)(a)(ii). The Paloma V departed Auckland on 24 May 2008, without discharging its cargo. It was understood to be bound for Namibia.

[26] In a report to the Chief Executive, Ministry of Fisheries, which is annexed to the affidavit from the first defendant’s investigation manager, it is said that the information obtained from the Paloma V illustrates that the vessel and its activities are controlled by a Spanish company, Vidal Armadores, and an Uruguayan company, Mabenal SA. It is said that the plaintiff appears to be the mechanism for getting the Paloma V flagged to Namibia to obtain a licence to fish in CCAMLR fisheries. It is said that Mabenal SA has had continuous ownership of the vessel since it was built in 2004. It is said that Vidal Armadores and Mabenal SA have strong links to IUU fishing activity in CCAMLR. It is said that:

As well as being listed on CCAMLR’s IUU Vessel Lists, documents found onboard the Paloma V show these two companies have interests in the operation of at least 5 fishing vessels currently entered on CCAMLR’s IUU vessel lists. Initial analysis has the Paloma V operating as part of a larger fleet of vessel flying different flags engaged in IUU fishing activities.

…

In addition to the information regarding control of the vessel and its part within a larger multinational fleet, images and documents were discovered that show the Paloma V supporting and possibly transhipping [sic] to fishing vessels listed by CCAMLR as IUU vessels. This is in direct contravention of CCAMLR Conservation Measures (10-06(5))…

The transhipping [sic] activities of Paloma V appear to have occurred whilst the vessel was flagged to Sierra Leone (August 2007). At the time Mabenal SA owned the vessel and Vidal Armadores was integrally involved in her operations.

Information obtained from the vessel also confirms that the Paloma V refuelled and re-supplied listed IUU vessel, Ina Maka, on 17 and 18 November 2007 while under the Namibian flag.…

[27] The Minister of Fisheries reported to the Minister of Foreign Affairs, who in turn intends to report to CCAMLR as to alleged contraventions under CCAMLR. The report is said to be required under conservation measure 10-06. That is, New Zealand has obtained information of activities that are set out in that measure and so it must submit a report within 30 days of becoming aware of it.

[28] In addition, information “in largely the same terms” as the intended report has already been shared with the United States and Australia in late May. This has been done because New Zealand co-operates closely on IUU fishing matters with those two countries.

Plaintiff’s submissions

[29] Until the report referred to at [26] above was annexed to an affidavit in this proceeding the plaintiff had not seen it. Since the inspection and the revocation of the authority under s 113 the plaintiff has been seeking information from the defendants. It has received some general information and tapes of the interview with the plaintiff's director. It says, however, that, other than the tapes, it has still not been provided with “proof of the lawfulness of the search...or evidence to any alleged wrongdoing on the part of the plaintiff” and that consequently it has been “unable to obtain proper legal advice as to the lawfulness of the search ...or the availability of any defences in relation to the revocation” and that “it has not been possible for the plaintiff to make any meaningful submissions to the decision-makers prior to them making any final determination on this matter”.

[30] The plaintiff’s statement of claim, prepared prior to seeing the report referred to at [26] above, alleges in fairly general terms that the search of the Paloma V and the seizure of the information and documents was unreasonable and unlawful and that there has been a breach of natural justice in relation to the report and revocation. As elaborated in submissions before me the plaintiff advances two causes of action:

a) That the inspection was a CCAMLR inspection under Part 6A of the Act. As such, the requirements of s 113T must be complied with and there is no evidence of such compliance. For example, a copy of a report on the inspection of the vessel must be provided to the master of the vessel and to the flag state of the vessel. Further, under Part 6A there is no power to take computer records, as occurred here. Accordingly, the inspection and search were unlawful; and

b) That the plaintiff was entitled to natural justice in respect of the report to CCAMLR because the report may damage the interest of the plaintiff. Accordingly, as a matter of fairness, the plaintiff should have the opportunity to comment on a draft of the report.

[31] Interim orders are sought because the plaintiff considers that the report will be detrimental to it. It says that a report will lead to the vessel ending up on the CPIUU listing which prohibits the issue of licences to listed vessels, effectively “blacklisting” the Paloma V. The plaintiff says that it would not then be able to repay the purchase price for the vessel resulting in default, job losses and the foreseeable liquidation of the company. The plaintiff also says that an adverse effect of a listing would be that no licences in any regional fishing management organisation areas would be issued in the world.

[32] In submissions before me the plaintiff accepts that there is a process which will be followed before the Paloma V can be listed on the CP-IUU Vessel List. It says, however, that it has no direct involvement in that process. CCAMLR is an international process. Any submissions it wants to make under that process can only be made via Namibia as the flag state. There is no guarantee that Namibia will make the submissions that the plaintiff would wish to advance.

[33] The plaintiff submits that under the CCAMLR process the focus will be on whether there is evidence of breaches of CCAMLR. That process will not take into account whether New Zealand acted lawfully in obtaining the information. If the process is set in train by the proposed report from the second defendant then the plaintiff’s claim under New Zealand domestic law will be rendered entirely moot. The substantive proceeding seeks a declaration that the defendants ought not to use the information it has obtained pursuant to the inspection which the plaintiff says is unlawful.

[34] The plaintiff submits that the prejudice from New Zealand not submitting the report within the 30 day period is not significant. There are no specific sanctions provided for any such breach. The plaintiff submits that it is in the interests of justice for the Court to make an interim order for a short period. The plaintiff is prepared to have a substantive hearing within the next two weeks, with the earliest possible date being late in the week of 23 June 2008.

Defendants’ submissions

[35] The defendants submit that there is no arguable cause of action raised by the plaintiff. The defendants submit that the inspection was lawfully undertaken under s 199(1) and that the copying of records was lawfully carried out under s 206. They say that alongside these powers the defendants also had the power to inspect the vessel under s 113S. They acknowledge that as yet they have not complied with all of the obligations required under Part 6A for that inspection but that is not the basis on which they propose to report to CCAMLR.

[36] The defendants submit that a Part 6A inspection is concerned with conservation measure 10-03. They say that is narrower in its scope and in due course Part 6A will be complied with when reporting under this measure. The defendants say that the information on which they intend to report concerns information relating to conservation measure 10-06 which is wider in scope. They say that they obtained this information pursuant to a lawful search under s 199(1). Having now obtained that information they say that New Zealand is required to provide a report under conservation measure 10-06.

[37] The defendants submit that there is no obligation to obtain the plaintiff’s comment on the draft report. The defendants note that the report is not a determination of rights or interests nor a final decision of any sort. They submit that the report is a preliminary step towards a four month process under which there will be a full exchange of information before any final decision is made.

[38] The defendants submit that the plaintiff has the opportunity to be involved in that process. Namibia has the legal responsibility for the Paloma V and has the ability to block the listing of the vessel. The defendants say that, should New Zealand receive further information through this proceeding or otherwise, it would provide that to CCAMLR. This would include information, for example, indicating that the breaches were not known to the plaintiff. It would also include any Court order (if it were made) that the information was obtained unlawfully.

[39] The defendants submit that interim orders are futile as essentially the same information as is to be reported to CCAMLR has already been provided to Australian and United States authorities, in accordance with normal practice. Those countries, as CCAMLR member states, are also obliged to report.

[40] The defendants submit that the making of interim orders would give rise to prejudice. An affidavit from the New Zealand Commissioner on CCAMLR says that if the report is not provided in the 30 day time period:

a) New Zealand would be in breach of its obligations under international law;

b) New Zealand’s status as a CCAMLR member state is undermined;

c) New Zealand’s reputation as a credible participant in collective fisheries management is placed in doubt; and

d) CCAMLR’s fisheries management regime is undermined and the operation of CCAMLR regulatory procedures is jeopardised.

[41] The defendants submit that the plaintiff was informed by the Ministry of Fisheries and Trade on 3 June 2008, and repeatedly thereafter, that the report would be made no later than 20 June 2008. The defendants say that if the plaintiff had brought its application for judicial review immediately there would have been sufficient time for the substantive application to be heard and determined urgently. By delaying the application the respondents’ position is seriously prejudiced because the grant of the interim orders places New Zealand in breach of its international obligations in circumstances where the plaintiff has not established its substantive claim.

[42] The defendants say that if an interim order were to be granted an urgent substantive hearing should be set on a date before 1 July 2008. If a decision is not made by then, it will be too late for New Zealand to seek to include the Paloma V on the draft vessel list.

Determination of interim orders application

[43] The inspection, search and seizure of the documents and the subsequent revocation of the authority issued under s 113 are the purported exercise of statutory powers and are therefore potentially subject to judicial review. Any action taken in respect of the documents obtained is an action consequential on those powers purported to be exercised and so may be the subject of an interim orders application under s 8 of the Judicature Amendment Act 1977.

[44] Where an application for judicial review is made, the Court may make interim orders if it considers that it is necessary to do so for the purposes of preserving the applicant’s position. There is no position to preserve if the applicant’s substantive claim is not arguable. On the basis of the limited argument before me on this urgent application I am unable to say that the plaintiff has no arguable cause of action. There is a specific regime for CCAMLR inspections under Part 6A. Whether that regime applies when a foreign vessel enters a New Zealand port with an authority under s 113, and a fishery officer proposes to inspect the vessel for CCAMLR compliance, being the basis on which the authority has been granted, is a matter of statutory interpretation which needs to be subject to full submissions from counsel. I therefore proceed on the basis that there is an arguable cause of action.

[45] If interim orders are not granted the report will be made. The plaintiff seeks an order in the substantive proceeding that the defendants not act on the information obtained. Interim orders are necessary to preserve the plaintiff’s position in this respect.

[46] The relevant discretionary factors in favour or against granting relief are discussed at [5] above. For the reasons stated there I consider that it is in the interests of justice to grant an interim order for a short period.

[47] Accordingly, there is an order:

Declaring that the second respondent ought to take no further steps in relation to the information and documents obtained by the First Respondent from the Paloma V and any report on certain matters which they intend to refer to the Commission established under the Convention on the Conservation of Antarctic Marine Living Resources until further order of the Court save as to notifying CCAMLR that it has obtained information which it considers is relevant to CM 10-06 that it is unable to provide within the 30 day time period because of a declaration of the Court.

[48] I direct the Registry to set this matter down for an urgent one day substantive fixture before 1 July 2008. Counsel are to liase with the Registry about that.

[49] The plaintiff sought costs. I declined to order costs. I accepted that the defendants were not in a position to give an undertaking that they not report and, if the plaintiff had filed its proceeding immediately, the substantive proceeding could have been heard and determined before the 30 day time period.

[50] The defendants indicated an intention to seek security for costs. The plaintiff advises that the sum of $10,000 has been deposited in the plaintiff’s solicitor’s trust account and is available as security. I am uncertain whether the defendants seek a formal order in respect of this sum. Leave to apply in respect of this is reserved.

Solicitors: F M Power, Rennie Cox Lawyers, PO Box 6647, Auckland (ph: 09 919 1814, fax: 09 307 6499)
B Keith, Crown Law Office, PO Box 2858, Wellington (ph: 04 473 1719, fax: 04 473 3482)