Omunkete Fishing (Pty) Ltd v Minister of Fisheries (No 2)

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
Applicant

AND THE MINISTER OF FISHERIES
First Respondent

AND THE MINISTER OF FOREIGN AFFAIRS AND TRADE
Second Respondent

Hearing: 27 June 2008

Appearances: P David for Applicant
B Keith for First and Second Respondent
G Van Bohemen for Second Respondent

Judgment: 1 July 2008 at 4 pm

JUDGMENT OF MALLON J

[1] The applicant is the registered owner of a fishing vessel, the Paloma V. The Paloma V is presently a Namibian flagged vessel. It had been fishing in the Southern Ocean and entered New Zealand waters on 16 May 2008 pursuant to an approval granted by the Ministry of Fisheries. New Zealand fisheries officers carried out an inspection of the vessel and examined computer records they obtained from the vessel during the inspection. The Ministry concluded that there was evidence that the vessel had been engaged in activities that breached conservation measures agreed to by a number of countries including New Zealand and Namibia. The issue on this judicial review application is whether the conditions of approval imposed by the Ministry, the search of the Paloma V, and the subsequent actions taken and which are proposed to be undertaken were or are unlawful. The application has been heard and needs to be determined on an urgent basis. As a result, this judgment is less full than it otherwise would have been.

Interim orders

[2] On Thursday, 19 June 2008, the applicant applied for an interim order under s 8 of the Judicature Amendment Act 1972 (“the JAA”) declaring that the respondents take no further action in relation to information and documents obtained by the first respondent from the Paloma V until further order of the Court. The urgency arose because the second respondent 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.

[3] 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 applicant’s position. I directed that an urgent substantive hearing 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 (CCAMLR) until further order of the Court 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.

[4] Following the granting of the interim order, on 27 June 2008 the substantive hearing on the applicant’s judicial review application took place. A decision on that application is sought by 5 pm on 1 July 2008 for reasons discussed below (at [53]). At the conclusion of the hearing on 27 June 2008 the respondents proposed a variation to the interim orders to enable translations of the proposed report to be prepared by the CCAMLR Secretariat in advance of 1 July 2008 on the basis that the report (and translations) would be returned to New Zealand in the event that the applicant was unsuccessful. However, this variation application was effectively withdrawn following the second respondent’s enquiry with the CCAMLR Secretariat that it would be sufficient for its purposes if an English version of the report was received at anytime before 5 pm on 1 July 2008.

Legal framework

[5] There are both international agreements and domestic law relevant to this matter. The key provisions of each of these are set out below.

The United Nations Convention on the Law of the Sea (UNCLOS)

[6] The respondents’ describe UNCLOS as the constitution of the sea, effecting “a comprehensive allocation of powers, rights and duties in respect of the governance of the oceans” and establishing “jurisdictional rules relating to the creation and enforcement of standards in different maritime zones”. Their submissions summarise the zones delineated in UNCLOS for fisheries purposes as follows:

32.1 Internal waters – the waters landward of the baselines for the establishment of the territorial sea (Article 8). Internal waters are, for most purposes, legally equivalent to a state’s land, and are subject to its territorial sovereignty. Most ports and harbours are internal waters.

32.2 The territorial sea – the belt of sea adjacent to the coast out to a distance of 12 nautical miles from prescribed baselines (Article 3). In the territorial sea, a coastal state has the same rights of sovereignty that it exercises over its land territory (Article 2), subject to the right of innocent passage (Article 17), and transit passage through any straits used for international navigation (Article 38), of ships of other states.

32.3 The Exclusive Economic Zone (EEZ): a zone extending from the coast to a distance of 200 nautical miles from the baselines of the territorial sea (Article 57). In the EEZ, a coastal state has sovereign rights over the living and non living resources of the sea and seabed, while preserving freedom of navigation and certain other high seas freedoms in this area (Articles 56 and 58). As the coastal state has sovereign rights over the living resources of its EEZ, it is entitled to make and enforce conservation and management measures and other laws relating to fishing in that zone.

32.4 The high seas – the waters beyond the EEZ. Under the principle of the freedom of the high seas no state has exclusive jurisdiction over the high seas and all states enjoy the freedom of the high seas, including the freedom of fishing. The freedom of fishing is codified in Article 87 of UNCLOS. It is not an unfettered freedom and in relation to fisheries, for example, is qualified by, among other things:

32.4.1 The duty to agree on conservation measures for straddling stocks with the relevant coastal states, either directly or through appropriate regional or subregional organisations (Article 63).

32.4.2 The duty to cooperate in the conservation of highly migratory species, either directly or through appropriate international organisations (Article 64).

33. On the high seas, jurisdiction is exercised by the Flag State (Article 94). This can be modified by the agreement of the Flag State concerned, for example through arrangements agreed through regional fisheries management organisations (RFMOs) or regional fisheries management arrangements (RFMAs). In the absence of such agreed modification, only the Flag State may exercise jurisdiction over a vessel on the high seas.

[7] The applicant takes no issue with this summary and in the interests of completing this judgment in the required timeframe I adopt it. The respondents also make the general point that the state has less control over each zone that is further out.

Fish Stocks Agreement

[8] The Fish Stocks Agreement is an international agreement negotiated in the early 1990s. New Zealand and Namibia are amongst the countries that are parties to this agreement. The agreement implements provisions of UNCLOS by setting out principles and mechanisms for the conservation and management of straddling and highly migratory fish stocks (that is, fish that move between the EEZ waters of a state and the high seas). Amongst other things, this agreement:

a) Seeks to encourage cooperation in the conservation and management of straddling and highly migratory stocks through RFMOs or RFMAs (Article 8);

b) Encourages states participating in RFMOs and RFMAs to develop their own boarding and inspection procedures but provides for a default system of boarding and inspection in high seas areas covered by an RFMO or RFMA if no such separate procedures are agreed.

c) Recognises that a port state has the right and the duty to take measures to promote the effectiveness of conservation and management measures adopted by RFMOs and RFMAs and to that end may inspect documents, fishing gear and catch on board fishing vessels, when such vessels are voluntarily in its ports (Article 23).

CCAMLR

[9] CCAMLR is an international treaty adopted in 1980. Forty-four states, including New Zealand and Namibia, are member states under CCAMLR. CCAMLR predates UNCLOS and the Fish Stocks Agreement. However, over time it has incorporated the principles and mechanisms of the Fish Stocks Agreement through conservation measures adopted by the CCAMLR Commission and is an example of a RFMO referred to in the Fish Stocks Agreement.

[10] Through CCAMLR the member states engage in collaborative regulation of fishing and other activities in the Antarctic and Southern Oceans and this regulation mostly concerns waters that are part of the high seas.

[11] Regulation of the Antarctic and Southern Oceans 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.

[12] 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 CCAMLR 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. Vessels which either declare that they have been involved in IUU fishing or fail to make a declaration are to be denied port access, other than for emergency purposes.

[13] If, as a result of the inspection, there is evidence that the vessel has fished in contravention of CCAMLR conservation measures the catch is not to be landed and the port state is to inform the Flag State of the findings and is to co-operate with the Flag State in taking appropriate action to investigate the alleged infringement and, if necessary, apply appropriate sanctions in accordance with national legislation.

[14] In respect of any port inspection of a vessel carrying toothfish the port state “shall promptly provide the Secretariat with a report on the outcome of each inspection”. If the vessel has been denied port access or permission to land toothfish the Secretariat is required to “promptly” convey the report to other member states and also to non-member states that are co-operating with CCAMLR.

[15] Conservation measure 10-05 sets out a catch documentation scheme for toothfish. Amongst other requirements, a member state is to take steps to identify the origin of toothfish imported into or exported out of its territories and the completion of catch documentation is required.

[16] Conservation measure 10-06 provides for a CP-IUU Vessel List, which is a list of vessels which have engaged in IUU activities. Once a vessel is placed on that list the Flag State of the vessel is required to take all necessary steps to address the activities that have led to the listing, including (if necessary) the withdrawal of the registration or of the fishing licences of these vessels. member states are also to take measures so as not to issue licences to these vessels to fish in the CCAMLR areas or in waters under the state’s jurisdiction; so that vessels under their flag do not assist vessels on the CCP-IUU vessel list; and to deny CCP-IUU vessels entry into their ports except to take enforcement action or for reasons of force majeure or where the vessel or persons on the vessel are in danger or distress.

[17] 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”. A report to CCAMLR under conservation measure 10-06 sets in train a four month process that may lead to the vessel being placed on the CPIUU Vessel List.

[18] The report under conservation measure 10-06 (in four languages: English, French, Russian and Spanish) is circulated to member states within one business day of a report being submitted by a member state and states are invited to provide any relevant information about the vessel. Before 1 July each year a draft CP-IUU Vessel List is distributed immediately to member states. Member states whose vessels are included in the draft CP-IUU Vessel List provide their comments before 1 September. There is then a process for the preparation and circulation of a provisional CP-IUU Vessel List, a proposed CP-IUU Vessel List and then finally the CP-IUU Vessel List.

[19] 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 CPIUU Vessel List. There is also provision for, and a process by which, a vessel can later be removed from the CP-IUU Vessel List. This includes, for example, where the Flag State proves that the vessel has changed ownership, the previous owner no longer has any legal, financial or real interest in the vessel nor exercises any control over it, and the new owner has not participated in IUU fishing.

[20] The owner of the vessel has no direct involvement in the process. Any submissions it wants to make must be via a member state. In this case, for example, submissions which the applicant would wish to advance must be made via Namibia, although it is up to Namibia what information and submissions it makes.

[21] CCAMLR provides that decisions “on matters of substance shall be taken by consensus”. Matters of substance are not defined by CCAMLR but the second respondent advises 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.

[22] CCAMLR also sets out a “CCAMLR System of Inspection” under which member states can board vessels in the CCAMLR area in order to verify compliance with conservation measures.

The Fisheries Act

[23] The Fisheries Act 1996 (“the Act”) regulates New Zealand’s fisheries resources. However it is also intended to recognise New Zealand’s international obligations relating to fishing (para (b) of the Title to the Act) and the provisions are to be interpreted in a manner consistent with New Zealand’s international obligations relating to fishing (s 5(a) of the Act). Most of the provisions relate to activities by New Zealand ships in New Zealand fisheries waters, but some provisions are cast more broadly.

[24] Section 113(1)(a)(ii) of the Act 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.

[25] Section 113(2) permits the Ministry to “impose any conditions on an approval granted under subsection (1) of this section, including conditions relating to the taking, storage, transportation, recording, reporting, landing, and disposal of the fish, aquatic life, or seaweed”.

[26] 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:

[27] 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:

[28] There is a power in s 305A of the Act to revoke an approval given under the Act where the approval was given on the basis of false or misleading information. The Chief Executive of the Ministry of Fisheries is required to give notice in writing of the intention to revoke the approval, with reasons, and to give the person to whom the notice is given a reasonable opportunity to make submissions in relation to the proposed revocation.

[29] It is these provisions above ([26] to [28]) which the second respondent relies on as authorising their actions that are under challenge in this proceeding. The applicant says that the relevant provisions are those contained in Part 6A of the Act.

[30] Part 6A was inserted in the Act in May 2000, apparently to provide for the ratification of the Fish Stocks Agreement where its provisions were not already contained in the Act (see (31 August 1999) 580 NZPD 18916). The majority of Part 6A applies only to New Zealand ships and fishing vessels. The sections that deal with foreign vessels carrying out activities on the high seas are ss 113S, 113T, 113U and 113V.

[31] Under s 113S(1)(b) a high seas fishing inspector may “for the purposes of ensuring compliance with international conservation and management measures adopted by a global, regional or sub-regional fisheries organisation … board and inspect a vessel in an area of the high seas that is covered by that organisation … or in New Zealand fisheries waters” if the Flag State of the vessel is a party to the Fish Stocks Agreement or is a member of the organisation and that organisation has established boarding and inspection procedures as provided in Article 21.2 of the Fish Stocks Agreement.

[32] Under s 113S(2) the Flag State may authorise the Chief Executive of the Ministry of Fisheries to investigate whether the vessel has engaged in an activity contrary to the relevant conservation measure and the high fishery inspector has, in relation to the vessel, “all of the powers of a fishery officer” (s 113S(2)(a)) or “[i]f the Flag State specifies the powers of a fishery officer that the high seas fishery inspector may exercise, those powers” (s 113S(2)(b)).

[33] If a vessel is boarded under s 113S, the requirements of s 113T must be followed. This involves the inspector providing his or her identity, and the fact that he or she is a high seas fishery inspector, to the master; providing the master with a copy of the boarding and inspection report; promptly leaving the vessel after completing the inspection unless there is evidence that the vessel has committed a “serious violation”; and, at the time of boarding and inspecting the vessel, initiating action to notify the Flag State of the inspection and providing a copy of the boarding and inspection report to the Flag State. The power is one of inspection. There is no power to remove records from the vessel.

[34] In the event that an inspection discloses evidence of a serious violation, the Chief Executive is required to advise the Flag State of the vessel as soon as practicable (s 113U). The high seas fishery inspector may require the master “to bring the vessel without delay to a port specified by the high seas fishery inspector” if the Flag State fails within three working days to respond to the notification or take action under its own law in respect of the serious violation (s 113U(3)).

[35] CCAMLR is an international conservation and management measure for the purposes of Part 6A. (See ss 113B and 113C of the Act and the Fisheries (High Seas Notification) Notice 2001 (SR 2001/83)).

The events leading to this application

[36] An affidavit filed on behalf of the applicant advises that the applicant 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 applicant purchased the Paloma V for 7 million euros. It further states that in October/November 2007 Gongala made an application to CCAMLR to catch toothfish in sectors 58.4.1, 58.4.2, 58.4.3b and 88.1. This application seems to have been granted and pursuant to this approval the Paloma V proceeded to catch toothfish in the Antarctic and/or Southern Oceans in the 2007/2008 fishing season.

[37] It seems that the Paloma V did not originally intend to land the fish in New Zealand. However, at some point on the fishing expedition a decision was made to seek approval to do so. The applicant did not know there was a port in Littleton, but knew that there was a port in Auckland. On 6 May 2008 the applicant 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 applicant 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.

[38] The application also asked whether the applicant 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 applicant or any other party materially involved in the fishing operation had breached the fisheries laws in any jurisdiction. The applicant answered no to these questions.

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

[40] The application required a declaration (amongst other things) that the information was true and correct. The declaration was given by Mr Van Zyl, a director of the applicant. With the application the applicant submitted a declaration from the master that the Paloma V had not been engaged in any IUU fishing activities in the CCAMLR area.

[41] On 9 May 2008 an approval was granted under s 113(1)(a)(ii). The approval set out various conditions covering such matters as retaining a copy of the approval, giving notice of entry into New Zealand waters and, on entering New Zealand waters, sailing “directly and expeditiously” to the port of unloading. The approval also stated that it could be “varied or revoked at any time”. It also stated:

Please note the landing of Toothfish is also subject to the requirements of Conservation Measure 10-05 of the Commission for the Conservation of Antarctic Marine Living Resources. That is a separate process, and is administered by the Ministry of Foreign Affairs and Trade, New Zealand.

[42] In accordance with the approval conditions the applicant 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 applicant 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 four Ministry of Fisheries inspectors went on board the Paloma V and removed various documents for inspection.

[43] 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. 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.

[44] 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.

[45] This affidavit was prepared for the interim orders application. Since then an affidavit has been prepared by the fisheries officer in charge of the inspection of the Paloma V. He says that there were four inspectors and that the purpose of the inspection was as set out at [43]. He says that all four officers were acting under s 199(1), but that two of the officers were “concerned with the vessel’s obligations under its s 113 approval and the possibility that the vessel could have fished while in transit through New Zealand’s EEZ”, whereas the other two officers “were primarily involved in the inspection of the vessel in respect of its catch in the CCAMLR area”. It is apparent from the job sheets and other attachments that one of the inspectors inspected the vessel in accordance with a CCAMLR Vessel Inspection Non- New Zealand Vessel Checklist 2007/08.

[46] In the course of the inspection the Paloma V’s computers were removed. The respondents say this was with the consent of the applicant and there is no evidence of any resistance to this. (Indeed the evidence indicates that those on board were cooperative throughout.) Once off the vessel, clones of the computer records were made and the computers were returned and re-installed in the vessel. From his review of the computer records, the officer in charge says that it appeared that:

a) There were a number of photographs that showed the Paloma V interacting or resupplying with a known IUU listed vessel, the Chilbo San 33.

b) There were emails outlining that the Paloma V had been involved in the refuelling and resupplying of a number of IUU listed vessels, including the event listed in paragraph a) above.

c) There were various spreadsheets and documents that were titled with the names of other IUU listed vessels.

d) There were documents for crew (eg passports and personal vessel work log books) showing they had recently worked on IUU listed vessels.

[47] On 21 May 2008 the Ministry of Fisheries wrote to the applicant advising that it had a number of concerns “which may result in the vessel’s approval to land in New Zealand being revoked”. This included that:

In terms of the history of the vessel and what you declared under section 8 “Fishing History” on the application form, some questions still remain as a result of the inspection and subsequent inquiries.

[48] The letter said:

I expect these matters to be addressed in the next few days but until they are resolved the Paloma V must not land any fish or fish product in New Zealand.

[49] On 22 May 2008, Mr Van Zyl was interviewed by Ministry of Fisheries officers. Mr Van Zyl was shown photographs and other records obtained from the computer records and the Ministry’s view of what those records show was put to Mr Van Zyl. Mr Van Zyl denied any knowledge of the activities, or any knowledge of any involvement in IUU activities, and appeared surprised and concerned at what was put to him. He accepted that the vessel would not be able to unload its catch. In the course of the interview he was cautioned in accordance with the New Zealand Bill of Rights Act and the Fisheries Act.

[50] On 23 May 2008 the first respondent revoked the approval issued under s 113(1)(a)(ii). The letter revoking the approval stated:

On the 9th of May 2008 I issued an approval under section 113(1)(a)(ii) of the Fisheries Act 1996 for the Namibian flagged vessel Paloma V to possess and land fish in New Zealand. This approval was granted based on the application you furnished to the Ministry of Fisheries on The 6th of May 2008 and you will note that condition 9 states that the Approval may be varied or revoked at any time.

On 21st May 2008 I wrote to you requesting further information in respect of the Approval and informed you of further inquiries being made following the inspection conducted of the Paloma V on 16th May 2008.

As a result of the inquiries concerning the information provided in respect of section 8 “Fishing History” of the application it has been established that material information was omitted which, if known at the time, would have resulted in the application being declined.

Therefore in accordance with condition 9 the Approval is hereby revoked.

Please note that it is an offence under the Fisheries Act 1996 to land any fish, aquatic life or seaweed taken beyond New Zealand fisheries waters without prior approval.

[51] The Paloma V departed Auckland on 24 May 2008, without discharging its cargo. It was understood to be bound for Namibia.

[52] In a report to the Chief Executive, Ministry of Fisheries, which is annexed to the affidavit from the first respondent’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 a Uruguayan company, Mabenal SA. It is said that the applicant 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 vessels 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 to fishing vessels listed by CCAMLR as IUU vessels. This is in direct contravention of CCAMLR Conservation Measures (10-06(5))…

The transhipping 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.…

[53] 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. The 30 day time frame has not been complied with as a result of the interim order (refer [2] to [3] above) but the second respondent now wishes to report by 1 July, 2008 so that the CP-IUU Vessel List process may be commenced this year.

[54] 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.

First cause of action: unlawful search and seizure

[55] Under this cause of action the applicant contends that the inspection was to determine if the applicant had complied with CCAMLR. As such it says that the first respondent, as a matter of statutory interpretation of domestic law, was under a mandatory statutory duty to comply with the Part 6A provisions. It says that these provisions, which specifically relate to inspection of foreign vessels in relation to international conservation measures, must have been intended by Parliament to override the general provisions found elsewhere in the Act. It says that there is no dispute that the requirements of s 113T were not complied with, nor that Part 6A contains no powers under which the computer records could be seized.

[56] I find against the applicant on this cause of action. My reasons are as follows.

[57] First, the inspection came within the words of s 199. The officers were empowered to inspect the vessel “in the course of the enforcement and administration of” the Fisheries Act. The power is a broad one. It does not matter in this case whether the officers were solely concerned with CCAMLR conservation measures or also concerned with such things as fishing in New Zealand waters rather than proceeding promptly and expeditiously to the port here. The Paloma V had been authorised to enter New Zealand waters pursuant to statements concerning the vessel’s 10 year history in relation to IUU fishing. The authorisation granted could be revoked if false or misleading information had been supplied (s 305A). In inspecting the vessel to investigate the validity of the information on which the approval has been granted, the officers were acting in the administration of the Act. Similarly, because they were exercising a power under s 199, they were able to take possession of the computers under s 206.

[58] Secondly, the note on the approval concerning CCAMLR (see [41] above), relied on by the applicant, merely alerts the applicant to Conservation Measure 10- 05. It does not override the plain and broad words of s 199, nor any other way mean that New Zealand was required under its domestic law to carry out port inspections using only the powers enacted in Part 6A.

[59] Thirdly, Part 6A is not expressed as overriding the powers found elsewhere in the Act. Nor are ss 199 and 206 expressed to be subject to the more specific provisions in Part 6A.

[60] Fourthly, the applicant submitted that the Paloma V is, in effect, a part of Namibia even when it enters a New Zealand port. It says that Part 6A contains protections and limits necessary to preserve the comity of nations. However, states have jurisdiction over vessels in their ports and foreign states cannot generally claim rights of passage into ports (see Rachel Baird, “Illegal, Unreported and Unregulated Fishing: An Analysis of the Legal, Economic and Historical and Factors Relevant to its Development and Persistence” [2004] 5 Melbourne Journal of International Law at 331 and Oppenheim International Law (9 ed 1992) at 82 and 572. When a vessel enters a New Zealand port it subjects itself to New Zealand’s laws.

[61] The position when entering a port is different from territorial waters where foreign states have certain rights of passage and transit but New Zealand has jurisdiction over resources in those waters (see [6] above), and the high seas where New Zealand can only exercise jurisdiction by agreement (see [6] above). Sections 113S, 113T and 113U recognise that the Flag State has authority over the vessel on the high seas. It implements a regime that enables the Flag State to be involved and to specify the powers that a New Zealand fisheries officer may exercise over that vessel.

[62] Fifthly the power in s 113U refers to the potential for an inspector to require the master to bring the vessel into a port in situations where the Flag State has not responded. Implicit in this is that in the absence of co-operation, a member state can move the vessel from the high seas into its jurisdiction.

[63] Sixthly, not only is New Zealand able to regulate matters within its jurisdiction in whatever manner it wishes, its obligations at international law do not limit its powers in respect of vessels entering its port. The inspection regime provided for in Article 21 of the Fish Stocks Agreement specifically applies to the high seas. Article 7 of the Fish Stocks Agreement seeks to require states to enact compatible conservation measures and to co-operate to achieve compatible management measures within areas under their national jurisdiction, but does not provide any specific regime for port inspections.

[64] Similarly CCAMLR conservation measure 10-05 provides that the port state has “control over a particular port area”. The CCAMLR system of inspection applies to the boarding of vessels “in the area to which Conservation applies” and, because of that, its thrust is the boarding of a vessel from another vessel (rather than boarding from land). Conservation measure 10-03 applies to port inspections but requires the state only to be guided by the CCAMLR system of inspection and does not limit a state’s inspection carried out under its domestic law.

[65] Finally, the confusion arises because s 113S refers to inspections on the high seas or in New Zealand fisheries waters. Mr Van Bohemen, for the second respondent, accepted that it was difficult to think of an example of why it would be necessary to include New Zealand fisheries waters in the section if the broader powers found elsewhere in the Act could be exercised. He suggested that it might arise where inspections occurred in areas that covered both the high seas and the EEZ. But in any event, I consider that the inclusion of “in New Zealand fisheries waters” is insufficient to evidence an intention by Parliament to override the general powers contained elsewhere in the Act in respect of port inspections.

Second cause of action: ultra vires approval process

[66] The applicant submits that the s 199 powers could not be exercised to find out whether questions were properly answered where the questions were ultra vires. It submits that the relevant questions under a s 113 application can relate only to the specific catch for which approval is sought. It submits that it is not an opportunity for the first respondent to investigate the history of the vessel. It submits that its position is in line with the special regime that Parliament has enacted in relation to inspections of foreign vessels for activities in the high seas. It submits that the first respondent’s application was a method that sought to avoid the express regime which Parliament intended would govern this inspection.

[67] I find against the applicant on this cause of action. Section 113(2) permits the Ministry to impose “any” conditions on an approval. While the particular examples given appear to relate to the catch for which the approval is sought, the section does not limit the conditions to this. It is not outside the purpose and scope of the Act for such conditions to include compliance with CCAMLR conservation measures. New Zealand’s international obligations are recognised under the Act and the provisions are to be interpreted consistently with its international obligations. New Zealand is entitled to deny entry into its ports to vessels that have been engaged in IUU fishing.

[68] In this case the conditions attached to the approval dealt with particular matters concerning entry into the port. However, there was nothing to prevent the Ministry, as a pre-condition to the grant of the approval, from asking questions about IUU activities and permitting entry only if it was satisfied about that.

Third cause of action: wrongful revocation of permit

[69] The applicant alleges that the first respondent failed to comply with the statutory process under s 305A in revocating the permit. The first respondent accepts this but submits that there was substantial compliance with the process and its failure to follow the precise requirements does not warrant relief in circumstances where the Paloma V has long since left the port with its cargo.

[70] I agree that the process was not strictly followed. However I decline to quash the revocation. The Paloma V has left and the applicant has not put forward any claim that the revocation has any on-going effect.

Fourth cause of action: breach of natural justice/bill or rights

[71] The applicant considers that the report will be detrimental to it. It says that the report will lead to the vessel ending up on the CP-IUU listing, effectively “blacklisting” the Paloma V. The applicant 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 applicant 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. The applicant submits that in these circumstances the second respondent owed it a duty to provide it with the opportunity to comment on the information it relied on in relation to its proposed report to CCAMLR.

[72] I accept that the report is potentially prejudical to its interests. The applicant had some opportunity to comment on the matters in the course of the interview. The report does not entail a determination of rights or interests. It begins a process under which the opportunity to comment is via the member states under the process set out in CCAML. I consider that there was no breach of natural justice or the Bill of Rights in this respect.

Result

[73] The applicant's claim is unsuccessful. The interim order made is lifted. If there are issues concerning costs the parties may submit memoranda within 30 days.

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)
G Van Bohemen, Ministry of Foreign Affairs & Trade, PO Box 18901, Wellington (ph: 04 439 8000, fax: 04 472 9596)