Sanford， Sealord Group ＆ Pelagic and Tuna New Zealand v The New Zealand Recreational Fishing Council ＆ New Zealand Big Game Fishing Council ＆ the Minister of Fisheries and the Chief Executive of the Ministry of Fisheries - 判裁案例 - 110网
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Sanford， Sealord Group ＆ Pelagic and Tuna New Zealand v The New Zealand Recreational Fishing Council ＆ New Zealand Big Game Fishing Council ＆ the Minister of Fisheries and the Chief Executive of the Ministry of Fisheries
CA163/07[2008] NZCA 160BETWEEN SANFORD LIMITED, SEALORDGROUP LIMITED AND PELAGIC ANDTUNA NEW ZEALAND LIMITEDAppellantsAND THE NEW ZEALAND RECREATIONALFISHING COUNCIL INC, AND NEWZEALAND BIG GAME FISHINGCOUNCIL INCFirst RespondentsAND MINISTER OF FISHERIESSecond RespondentAND THE CHIEF EXECUTIVE OF THEMINISTRY OF FISHERIESThird RespondentHearing: 26 and 27 February 2008Court: William Young P, O'Regan and Arnold JJCounsel: B A Scott and G T Carter for AppellantsA R Galbraith QC and S J Ryan for First RespondentsA E L Ivory, P A McCarthy and S J Ritchie for Second and ThirdRespondentsJudgment: 11 June 2008 at 11.30 amJUDGMENT OF THE COURTA The appeal and the cross appeal are both allowed in part.B The declaration made in the High Court is amended so that it now readsas follows:A declaration is made that the Minister’s decisions in 2004 and 2005were unlawful to the extent that the Minister:(a) failed to have particular regard to ss 7 and 8 of the Hauraki GulfMarine Park Act 2000 when fixing the Total AllowableCommercial Catch for Quota Management Area KAH1;(b) failed without giving any or proper reasons to consider advicefrom the Minister of Fisheries to review bag catch limits forrecreational fishers.C We quash the direction made by the High Court that the Ministerreconsider his 2005 decisions to take account of the High Courtdeclaration. We substitute a direction that when next setting the TotalAllowable Catch and the Total Allowable Commercial Catch forkahawai, the Minister must take account of the declaration in B above.D We make no award of costs.REASONS OF THE COURT(Given by O’Regan J)Table of ContentsPara NoQuota management of the kahawai fishery [1]High Court case [4]Minister has not appealed [7]Commercial fishers’ grounds of appeal [8]Recreational fishers’ cross appeal [10]Issues [12]Statutory background [15]Factual background to the setting of the TAC and TACCfor kahawai [28]Did the Minister’s TACC decisions for all KAH areas in 2004 and2005 involve the proper application of the statutory criteria? [34]High Court approach [35]Commercial fishers’ submissions [43]Is the TAC decision inconsistent? [45]What is the relationship between ss 8 and 21 in relationto the TACC decision? [50]Did the Minister have regard to qualitative factors? [70]Did the Minister correctly apply the requirements of the HGMPAin making the TAC and TACC decisions for KAH1 in 2004 and2005? [84]Was the Minister obliged to have particular regard to the HGMPAwhen setting the TACC? [90]Did the Minister have regard/particular regard to the HGMPA insetting the TAC and the TACC? [91]Should the Court grant relief because the Minister failed toimplement reasonable measures to monitor and assess therecreational catch? [118]Result [128]Costs [130]Quota management of the kahawai fishery[1] This appeal arises out of the decisions of the Minister of Fisheries in both2004 and 2005 setting the Total Allowable Catch (TAC) and the Total AllowableCommercial Catch (TACC) for the kahawai species. Kahawai is a shared fishery,that is both recreational fishers and commercial fishers seek to maximise their accessto the fishery, and are effectively in competition with each other for such access.[2] The present case began as an application by the first respondents,representing recreational fishers, for judicial review of the Minister’s decisionssetting the TAC and TACC in both 2004 and 2005. The appellants, representingcommercial fishers, counter-claimed in the High Court, also seeking judicial reviewof aspects of the Minister’s decision.[3] The setting of both TACs and TACCs is undertaken on a regional basis, andin the case of kahawai there are six “quota management areas” (QMAs). These areknown as KAH1, KAH2, KAH3, KAH4, KAH8 and KAH10. While a number ofthe grounds on which judicial review was sought challenged the TAC and TACC forall QMAs, there was particular focus in relation to one such area, KAH1, because itincludes the Hauraki Gulf. That is an area of particular interest to recreationalfishers and because there is a marine park in the area which creates particular legalrequirements under the Hauraki Gulf Marine Park Act 2000 (HGMPA).High Court case[4] The case came before Harrison J in the High Court. He found that theMinister had erred in some respects in setting the TACCs for all QMAs in both 2004and 2005. He also found that the Minister had failed to take proper account ofrelevant provisions of the HGMPA when fixing the TAC for KAH1. In addition, theJudge found that the Minister had failed to consider advice from the Ministry ofFisheries (MFish) to review bag catch limits for recreational fishers. He declined toquash the Minister’s decisions, but granted declaratory relief (see below) anddirected the Minister to reconsider or review his 2005 decisions forthwith to takeaccount of the declarations. He rejected numerous other criticisms of the Minister’sdecisions made by both the recreational fishers and the commercial fishers. TheJudge’s decision is New Zealand Recreational Fishing Council Inc v Minister ofFisheries HC AK CIV 5 21 March 2007.[5] The declaration granted by the Judge was in this form:A declaration that the Minister’s decisions in 2004 and 2005 were unlawfulto the extent that the Minister:(a) fixed the TACCs for kahawai for all KAHs without having properregard to the social, economic and cultural wel(b) failed to take any or proper account of ss 7 and 8 Hauraki GulfMarine Park Act 2000 when fixing the TAC for KAH1;(c) failed without giving any or proper reasons to consider advice fromMFish to review bag catch limits for recreational fishers.[6] Subsequently, in a decision dated 11 July 2007, Harrison J ordered that hisjudgment be stayed pending determination of the present appeal.Minister has not appealed[7] An unusual feature of this appeal is that the Minister, who was the subject ofthe declarations and orders made in the High Court, did not appeal to this Court.Rather, the appeal is brought by the commercial fishers and, although that appealseeks to uphold the decisions of the Minister relating to the TACC (and the TAC forKAH1) which were found by the High Court to be in error, the Minister himselfaccepts the High Court judgment and acknowledges certain errors identified by theHigh Court Judge in the 2004 and 2005 decisions. Neither the Minister nor anyother party challenges the finding by the Judge with regard to the Minister’s decisionrelating to bag limits (para (c) of the declaration). The Minister does, however, takeissue with some aspects of the Judge’s reasoning on the TACC issues and thoserelating to the HGMPA.Commercial fishers’ grounds of appeal[8] The commercial fishers have appealed against the following aspects of theHigh Court judgment:(a) The finding that the Minister set TACCs for all KAH areas withouthaving regard to the social economic, and cultural wellbeing of the(b) The finding that the Minister set the TAC for KAH1 without properconsideration of the HGMPA;(c) The refusal to grant a declaration that the Minister had failed toimplement measures to monitor recreational catch of kahawai.[9] A number of other grounds of appeal were not pursued by the commercialfishers, after they reached agreement with MFish that the Minister will reconsider allaspects of the kahawai TAC, TACC and recreational fishing limits in the light of theHigh Court decision and that of this Court.Recreational fishers’ cross appeal[10] The recreational fishers’ cross appeal concerns the Judge’s finding that theHGMPA did not apply to the Minister’s TACC decision for KAH1.[11] The positions of the commercial fishers and recreational fishers respectivelyon the matters at issue in this appeal bear out the comment made by the High CourtJudge in the introduction to his decision that the Minister “walks a tightrope betweentwo powerful interest groups” whenever he or she fixes the TAC and TACC for anyshared fishery. The High Court Judge was critical of the conduct of the High Courtcase because he was presented with reams of material on numerous aspects of thedecisions, including some minor factual matters, as if the case were an appeal. Weagree with him that that was not appropriate given the limited scope of judicialreview proceedings.Issues[12] The disposition of the appeal and the cross appeal requires us to address thefollowing issues:(a) Whether the Minister’s TACC decisions for all KAH areas in 2004and 2005 involved proper application of th(b) Whether the Minister correctly applied the requirements of theHGMPA in making the TAC and TACC decisions for KAH1 in 2004and 2005;(c) Whether the Minister failed to implement reasonable measures tomonitor and assess the recreational catch in both 2004 and 2005 andwhether the Court should grant a declaration requiring him to do so.[13] The close relationship between the TAC decision and the TACC decision,and the criticisms of aspects of the Judge’s decision upholding the TAC decisionmake it necessary for us to consider the TAC decisions for both 2004 and 2005, eventhough those decisions are not challenged by any party.[14] Before we address the above issues, we will briefly explain the statutorycontext and the factual background to the Minister’s decisions.Statutory background[15] Kahawai is a species of fish which is subject to the quota management systemestablished under Part 4 of the Fisheries Act 1996. The quota management systemhas been described in numerous decisions of the High Court and this Court, and wedo not propose to set out the statutory framework in detail. For species subject to thequota management system, the Fisheries Act envisages that the Minister will set theTAC for that species in each QMA, and, having done so, will then set the TACC forthat QMA. When setting the TACC, the Minister is required to first allow for M oricustomary non-commercial fishing interests and recreational interests, and othermortality to the species of the stock caused by fishing. Essentially the differencebetween the total allowances made for those factors and the TAC is the TACC.[16] Quota held by commercial fishers is a form of property right entitling thefisher to catch the relevant species in a particular fishing year in a particular QMA.Quota are not expressed in absolute amounts, but as proportions of the TACC for therelevant QMA. For this reason, any reduction in the TACC diminishescommensurately each quota holder’s property right. The interests of commercialfishers are to keep the TACC at the highest possible level and, as the TACC is aproportion of the TAC, to also keep the TAC at the highest level, though fisherstaking a long term view presumably accept that the TAC and TACC should not be sohigh as to threaten the sustainability of the fishery.[17] On the other hand, it is in the interests of recreational fishers to keep theTACC as low as possible so more of the TAC is accessible to them. Because therecreational catch for kahawai is currently not monitored, the interests of recreationalkahawai fishers are also served by a lower TAC. This is because the TACC is aproportion of the TAC and if the TAC is low, then the TACC will itself be lower(unless the reduction in the TAC is not shared commensurately by recreationalcustomary and commercial fishers, and that has not happened to date). Their focuson the recreational aspect of fishing means that they have an interest in large fishnumbers and more mature (and therefore larger) fish in the inshore fishery, which ismade more likely by a reduced catch by commercial fishers. It is therefore in theirinterests that a fishery is managed at a level of stock well above that which canproduce the maximum sustainable yield (see [23] below).[18] The purpose of the Fisheries Act is set out in s 8, which provides:8 Purpose(1) The purpose of this Act is to provide for the utilisation of fisheries resourceswhile ensuring sustainability.(2) In this Act—Ensuring sustainability means—(a) Maintaining the potential of fisheries resources to meet thereasonably foreseeable needs o and(b) Avoiding, remedying, or mitigating any adverse effects of fishingon the aquatic environment:Utilisation means conserving, using, enhancing, and developing fisheriesresources to enable people to provide for their social, economic, and culturalwellbeing.[19] The notable feature of this provision is the tension between the provision forutilisation of fishery resources and the ensuring of sustainability which is inherent ins 8(1). That can be contrasted with the more single minded purpose provision in s 5of the Resource Management Act 1991, where the purpose is stated to be thepromotion of the sustainable management of natural and physical resources. Thereference to enabling people to provide for their social, economic, and culturalwellbeing echoes a similar form of words used in the definition of “sustainablemanagement” in s 5(2) of the Resource Management Act. A similar form of wordsis used in s 5(b) of the Hazardous Substances and New Organisms Act 1996, whichsets out the principles relevant to the purpose of that Act. Other similar provisionsappear in the Local Government Act 2002 (ss 3(d) and 14), the Civil DefenceEmergency Management Act 2002 (s 3) and the Energy Efficiency and ConservationAct 2000 (s 6).[20] Section 8 is followed by two provisions dealing with principles to be appliedby those exercising powers under the Fisheries Act. Section 9 deals withenvironmental principles, and s 10 with information principles. For the purposes ofthis appeal, the most important of these is s 10(a), which requires decision-makers(the Minister in this case) to take into account the principle that “decisions should bebased on the best available information”.[21] Section 13 provides for the setting of the TAC for a species in respect of aparticular QMA. Of particular importance to this appeal are sub-sections (1) – (3) ofs 13, which provide:13 Total allowable catch(1) Subject to this section, the Minister shall, by notice in the Gazette, set inrespect of the quota management area relating to each quota managementstock a total allowable catch for that stock, and that total allowable catchshall continue to apply in each fishing year for that stock unless variedunder this section, or until an alteration of the quota management area forthat stock takes effect in accordance with sections 25 and 26.(2) The Minister shall set a total allowable catch that—(a) Maintains the stock at or above a level that can produce themaximum sustainable yield, having regard to the interdependence of or(b) Enables the level of any stock whose current level is below thatwhich can produce the maximum sustainable yield to be altered—(i) In a way and at a rate that will result in the stock beingrestored to or above a level that can produce the maximumsustainable yield, having regard to the interdependence of and(ii) Within a period appropriate to the stock, having regard tothe biological characteristics of the stock and anyenvironmental conditions or(c) Enables the level of any stock whose current level is above thatwhich can produce the maximum sustainable yield to be altered in away and at a rate that will result in the stock moving towards orabove a level that can produce the maximum sustainable yield,having regard to the interdependence of stocks.(3) In considering the way in which and rate at which a stock is moved towardsor above a level that can produce maximum sustainable yield underparagraph (b) or paragraph (c) of subsection (2) of this section, the Ministershall have regard to such social, cultural, and economic factors as he or sheconsiders relevant.[22] Section 13 appears in Part 3 of the Fisheries Act, which is entitled“Sustainability measures”.[23] The concept of maximum sustainable yield is an important component of theFisheries Act. It is defined in s 2 as follows:Maximum sustainable yield in relation to any stock, means the greatestyield that can be achieved over time while maintaining the stock’sproductive capacity, having regard to the population dynamics of the stockand any environmental factors that influence the stock.[24] The term “maximum sustainable yield” is often abbreviated to “MSY”. TheMSY for a species is measured by reference to the biomass that can produce theMSY: the term BMSY is used to represent that concept. This equates to the conceptreferred to in s 13(2). Calculation of BMSY requires an assessment of the current sizeof the stock of the species and its capacity to sustain itself, given the proposed levelof the TAC.[25] New Zealand’s international treaty obligations, particularly arts 61 and 62 ofthe United Nations Convention on the Law of the Sea, drive the focus of theFisheries Act on exploitation of fishery stocks within sustainability limits. This isreflected in s 5 of the Fisheries Act. Counsel for the commercial fishers told us that,in cases of fisheries which have not been subject to extensive fishing, reaching BMSYmay involve an initial substantial reduction in the volume of the stock by heavyfishing until the equilibrium inherent in the concept of maximum sustainable yield isreached.[26] Section 20, which appears in Part 4 (entitled “Quota management system”)provides for the setting of the TACC for a particular species. Section 21 specifiesthe matters to be taken into account in setting the TACC. Section 21(1) provides:21 Matters to be taken into account in setting or varying any totalallowable commercial catch(1) In setting or varying any total allowable commercial catch for any quotamanagement stock, the Minister shall have regard to the total allowablecatch for that stock and shall allow for—(a) The following non-commercial fishing interests in that stock,namely-(i) Maori customary non-commerci and(ii) Re and(b) All other mortality to that stock caused by fishing.[27] Section 21(5) requires that, when allowing for recreational interests unders 21(1), the Minister must take into account any regulations prohibiting or restrictingfishing in any area.Factual background to the setting of the TAC and TACC for kahawai[28] The history is well summarised in the judgment under appeal at [8] – [13].Reference should be made to that judgment for the detail.[29] The Minister made a determination to bring kahawai within the quotamanagement system (under s 17(b) of the Fisheries Act) in 2003, and the requirednotice was given under s 18 on 1 October 2003: The Fisheries (Declaration of NewStocks Subject to the Quota Management System) Notice (No.2) 2003. That noticealso specified the six QMAs for kahawai.[30] Section 12 of the Fisheries Act requires the Minister to consult interestedparties before setting the TAC for a species. A similar obligation is imposed bys 21(2) in relation to the setting of the TACC. MFish undertook an extensiveprocess of consultation on the Minister’s behalf in both 2004 and 2005. In both2004 and 2005 MFish prepared an initial position paper (IPP) which was the basis ofconsultation and, following consultation issued a final advice paper (FAP). TheMinister’s TAC and TACC decisions in both 2004 and 2005 followed his receipt ofMFish’s advice in the FAP.[31] In the course of argument in this Court there was extensive reference bycounsel to the IPP and FAP for both the 2004 and 2005 decisions, because much ofthe focus of the argument was on the advice given to the Minister by MFish, and itsimpact on the decision which the Minister ultimately made. In each of 2004 and2005 the Minister also issued a formal letter of decision setting out the reasons forhis decision as required by s 12(2) of the Fisheries Act (in relation to the TACdecision) and s 21(3) (in the relation to the TACC decision).[32] The Minister who made the 2004 decisions was Hon David Benson-Pope.The Minister who made the 2005 decisions was Hon Jim Anderton. We will refer to“the Minister” in this judgment without identifying the holder of the office at aparticular time. In both years, the Minister reduced the TAC from the level of TACthen in force. Consequentially, the amount of kahawai which each quota holdercould catch was reduced in each year.[33] We now turn to the issues identified at [12] above.Did the Minister’s TACC decisions for all KAH areas in 2004 and 2005 involvethe proper application of the statutory criteria?[34] As noted earlier, the High Court Judge found that the Minister’s decisionssetting the TACC for all KAH areas in 2004 and 2005 were unlawful, and made adeclaration to that effect. However, a similar challenge to the TAC decisions in bothyears failed. Although there was no challenge to the Judge’s finding that the TACdecision in both years was lawful, that decision still featured in the arguments for allparties because of the contrast in the Judge’s approach to that aspect of the case andhis approach to the TACC decisions.High Court approach[35] The Judge began his consideration of the Minister’s decisions bydifferentiating the TAC decision from the TACC decision. He said at [43] thatdifferent considerations applied to each: the TAC decision is a sustainabilitymeasure, while the TACC decision is a mechanism for allocating a resource betweencompeting interests, where utilisation principles had a direct bearing.[36] The recreational fishers’ challenge to the TAC decision in the High Courtwas founded on their argument that the Minister’s decision was tainted by hisreliance on MFish’s advice which used catch history data as the primary criterion, tothe exclusion of people’s “social, economic and cultural wellbeing”. Harrison J saidthat social, economic and cultural wellbeing was not a mandatory statutory guidelinefor the fixing of a sustainability measure, and the Minister was obliged only to haveregard to such social, cultural and economic factors which he considered relevant,and then only in structuring the return of the kahawai stock to maximum sustainableyield, not in setting a level of the TAC itself. He found that the Minister hadsatisfied the obligation to have regard to such social, cultural and economic factorsas he considered relevant.[37] The Judge’s analysis of the TACC decision drew on his earlier finding thatthe TACC was a utilisation, rather than a sustainability measure (at [55]). Heconsidered that this meant that, when the Minister considered what allowance tomake for recreational interests, the criterion set out in s 8(2) of enabling people toprovide for their social, economic and cultural wellbeing was a mandatoryconsideration. He said that the allowance for recreational interest reflected in thelevel of TACC should appropriately recognise the extent to which kahawai providesfor the wellbeing of recreational interests, which he said meant the state of people’shealth or physical wellbeing. He said people provide for their wellbeing either bycatching kahawai or by purchasing it from retail outlets.[38] Later the Judge considered the application of s 8(2) in relation to commercialfishers. He noted that commercial fishers provided for the wellbeing of the NewZealanders who do not fish recreationally by supplying enough fish to satisfyconsumer demand. He also said at [57] that the utilisation of a fisheries resourceprovides for the economic wellbeing of commercial fishers whose livelihooddepends on income from that activity. However, he said that that step could not beundertaken in a vacuum based solely on the stock’s financial value, whether forcommercial or recreational users: allowances must be made for other values. He saidthat this requires a qualitative or non-quantitative assessment of the type suited to theMinister’s exercise of judgement: at [58].[39] The Judge identified some of these qualitative factors at [59] as follows:(a) Recreational fishers’ progressive loss of access to other, more highlyprized, financial species, especially snapper. He noted that kahawaifishers are said to fish frequently and for eating purposes from jettiesor platforms rather than boats, and to have lower than averageexpenditure on fishing. They were less able to afford to fish for otherspec(b) Kahawai’s minimal value to people other than recreational fishers, asreflected in its small retail market. The evidence was that thecommercial value of kahawai catch was relatively low (much of thekahawai catch is caught as a by-catch of other species) and much ofthe catch is exported for use(c) The recreational fishers commo(d) Patterns and levels of recreational catch history. However, he saidthis last factor, which had significant influence on the Minister’sdecision, was not decisive.[40] The Judge then undertook a review of the advice given by MFish in the 2004IPP, which he said involved an evaluation of social and cultural wellbeing as anexclusively economic exercise, involving solely quantitative or economic measuresas the index for assessing the requisite social or cultural value of kahawai torecreational fishers. He said this error was compounded in the 2004 FAP. He notedthat the advice given by MFish did not refer to the Minister’s statutory obligation totake account of the utilisation principles in s 8(2). He said that MFish recognisedthat the s 8(2) utility or wellbeing concept applied to the allocative process andfavoured recreational fishers, but instead of recommending its adoption (which hesaid was mandatory), it preferred its IPP method of estimating utility value.Ultimately the utility value approach was rejected for lack of certainty and insteadMFish advocated its policy preference for an approach based on catch history, whichthe Judge said could not take precedence over a mandatory requirement to adopt theutilisation approach: at [67].[41] The Judge’s conclusions are summarised at [72] – [74] of his decision asfollows:[72] In summary, when setting a TACC for kahawai, the Minister musthave regard first to the TAC and then allow for non-commercial fishinginterests in the stock. This is an exercise in judgment, to be carried out byweighing up and balancing the recreational fishers’ right to provide for theirsocial, economic and cultural wellbeing by fishing for kahawai against theextent, if any, to which the people’s, in the sense of the wider general public,wellbeing is served by commercial interests in satisfying consumer demand.Also relevant, in this latter respect, is the extent to which commercial fishingfor kahawai provides for the we but this factor willassume little significance if the volumes of the resource at issue are unlikelyto imperil employment.[73] Adoption of financial modelling to assess the qualitative factors ofcultural and social wellbeing, such as the hypothetical marginal willingnessof a recreational fisher to pay for the stock, might provide assistance as areference point but it is neither exclusive nor determinative. An analysis ofcatch history falls into the same category, especially where there is evidencethat current levels of use do not satisfy need. Self-evidently, thecharacteristic availability and value of the particular species will be very the approach to setting the TACCs and allowances for kahawai willdiffer from other species. There are no truly reliable objective criteria.Whether the results of the Minister’s review are the same as, similar to ormaterially different from the current TACCs and allowances will dependupon the Minister’s subjective evaluation of all relevant factors.[74] The Minister’s 2004 and 2005 letters were silent on the utilisationrequirement to allow for the recreational fishers’ interests by reference to theright to provide for their wellbeing when allowing for their interests in theTACs, and I must infer from his wholesale adoption of MFish’s advice andthe terms of his decisions that he did not separately consider this issue. Inmy judgment the Minister, acting on MFish advice, erred materially whenfixing the TACCs for 2004 and 2005.[42] The High Court did not quash the 2005 TACC decision, even though it foundthe Minister had erred in certain respects. The 2004 decisions are no longer of anypractical significance. Because the Minister and the other parties are agreed thatthere will be a revisiting of the 2005 decisions after the completion of this litigation,allowing the Minster to take account of the High Court decision and this decision, itis not necessary for us to undertake a detailed factual analysis of the basis on whichthe 2005 decision was reached, in order to determine whether it ought to be quashed.For this reason we do not propose to undertake a detailed evaluation of the factualbasis for the decision, as was necessary in the High Court. Rather we will deal withthe issues at a level of principle, which will hopefully provide guidance to theMinister and MFish in relation to the 2008 decisions, and provide a frameworkwithin which submissions can be made by the recreational fishers and commercialfishers respectively in the course of the consultation process leading up to the 2008decisions.Commercial fishers’ submissions[43] Counsel for the commercial fishers, Mr Scott, challenged the High Courtfinding in relation to the TACC decision on the following three bases:(a) He argued that the Judge’s finding that the TAC decision was validbut the TACC decision was unlawful was inherently inconsistent. Inthat respect he challenged the High Court Judge’s view that the TACwas a sustainability decision whereas the TACC was a utilisation(b) He argued that the Judge placed too much emphasis on s 8 in relationto the TACC decision. He submitted that focus should have been ons 21(1);(c) He also challenged the Judge’s finding that the Minister had not, infact, had regard to qualitative factors affecting recreational interests inrelation to the TACC.[44] We will consider these arguments in the above order.Is the TAC decision inconsistent?[45] At the heart of this argument is the Judge’s separation of s 8 into two discretelimbs, one that concerned sustainability and the other utilisation, and his furthercharacterisation of the TAC decision as a sustainability decision and the TACCdecision as invoking utilisation principles: at [43]. This appears to have led theJudge to conclude that, when making the TAC decision, the Minister had to haveregard to the sustainability purpose of s 8(2). As it is the utilisation purpose in s 8(2)that brings into play the need to provide for social, economic and cultural wellbeingof people, that factor was not relevant to the TAC decision. The utilisation purposein s 8(2) was said to be relevant only to the extent that it could be shown that theTAC decision frustrated or prevented compliance with the complementary objectiveof providing for and allocating current utilisation of the stock: at [46].[46] On the other hand, the Judge considered that the TACC decision, as autilisation decision, did require a focus on the utilisation purpose in s 8(2), andtherefore the social, economic and cultural wellbeing factors came into play andwere, in fact, mandatory relevant considerations. Although he accepted that therewas a relationship between the two purposes, as without sustainability today therecould not be utilisation in the future, the Judge viewed the TAC and TACC decisionsas giving effect to different purposes and therefore importing different considerationsfrom s 8.[47] We will deal with the extent to which s 8 needs to be brought to bear in anydecision under the Fisheries Act later. For present purposes all we need to say is thatwe do not agree with the Judge that the TAC and TACC decisions can be categorisedas sustainability and utilisation decisions respectively. Nor do we agree that the s 8purpose can be subdivided in this way: s 8(1) describes the purpose as involving aninherent balancing exercise between sustainability and utilisation, and we do not seethat as being subdivisable.[48] We agree with Mr Scott that the TAC decision has utilisation as well assustainability aspects to it. In effect, the TAC determines the total level of harvestwhich will be permissible, and that in turn affects the issue as to whether the stockwill be managed above or below BMSY and, if above or below, by how much. We donot think it assists the analysis to subdivide these two factors the way that the HighCourt Judge appears to have done.[49] In general terms, therefore, we accept there is some inconsistency in theJudge’s approach to the TAC and TACC decisions respectively. The recreationalfishers did not appeal against the Judge’s finding in relation to the TAC decision, sothat inconsistency carries over to their position as well. However, because of theview we take about the general application of s 8, it is not necessary for us to engagefurther with this argument.What is the relationship between ss 8 and 21 in relation to the TACC decision?[50] The Judge’s starting point when analysing the TAC decision was s 13. Asss 2 and 11 defines a TAC as a “sustainability measure”, the Judge saw the TACdecision as requiring consideration of the sustainability purpose as defined in s 8(2)rather than the utilisation purpose. However despite the utilisation purpose in s 8(2)not being engaged, social, economic and cultural factors were relevant to the TACdecision because of the potential application of s 13(3), which expressly refers tothose factors. Section 13(3) is limited in scope. It comes into play only where theMinister is considering the way in which and the rate at which a stock is movedtowards or above BMSY. It requires only that the Minister consider such of thosefactors as he or she considers relevant. And there is no reference to the wellbeing ofpeople as there is in s 8(2). The Judge saw these as creating significant distinctionsbetween the TAC decision and the TACC decision. We do not consider that they do.[51] When setting the TACC under s 21 the Minister is required to “makeallowance” for recreational and customary interests. The criticism made of the HighCourt Judge’s approach by the commercial fishers is that the Judge effectivelyallowed s 8 to trump s 21, when it is the latter, not the former, which is the provisionwhich has primary relevance to the TACC decision.[52] This argument requires us to consider the role of s 8 in the context ofdecisions under the Fisheries Act, which, at a more generic level, leads to aconsideration of the role of purpose provisions in legislation in relation to specificdecisions made under specific provisions of the legislation.[53] The precise role occupied by s 8 in the scheme of the Fisheries Act has notbeen the subject of any detailed consideration in earlier decisions of this Court. InKellian v Minister of Fisheries CA150/02 26 September 2002, the Court commentedat [38] that the Fisheries Act provides a range of ways of achieving the purpose setout in s 8. That appears to envisage that s 8 sets out a broad purpose which theFisheries Act, and the mechanisms within it is designed to achieve.[54] Section 8 was described by Richardson in “Sustainability in the Fisheries Act1996: Protect in the Interests of Prosperity?” () Resource ManagementBulletin 125 as:Essentially a statement on government policy, to guide decision-makers andassist Courts in interpreting the detail of the Act.That accords with our understanding of the provision.[55] The statutory history also supports this view. Initially the purpose provision(cl 6 of the Bill as introduced) defined “sustainable utilisation”, rather than defining“ensuring sustainability” and “utilisation” separately. This was changed as a resultof a recommendation from the Primary Production Select Committee apparently todeal with a concern expressed by recreational fishers that the term “utilisation”would create a bias towards commercial fishing activities. The Committee alsointroduced into what is now s 13(3) the requirement for the Minister to have regardto relevant social, cultural and economic factors when considering the way in whichand the rate at which a stock is moved towards or above a level that can producemaximum sustainable yield (in the context of a TAC decision). It is hard to imaginethat the Committee would have seen this as a necessary measure if it had envisagedthat the reference to those factors in s 8(2) was a mandatory consideration in anyevent.[56] The Committee also changed the provision which has now become s 21,which is described as specifying “the matters that the Minister must have regard toand allow for before setting or varying the TACC for any stock”. The wording ofthe Bill as introduced required that the Minister “have regard to” non-commercialinterests, and the Committee changed this to “allow for” to make it clear that noncommercialinterests had priority.[57] In our view the Judge overstated the significance of s 8(2) in the context of aTACC decision. The primary provision guiding the Minister’s TACC decisionmakingis s 21, which requires the Minister to allow for recreational and customaryinterests. The section does not provide further guidance, but the use of the term“allow for” does require that the Minister deal with the demands of recreation andcustomary fishers before determining the TACC. That does not mandate anyparticular outcome (it can be imagined that for some species the Minister woulddetermine that there should be little or no allowance for those interests, while forothers the allowance may be all or a substantial proportion of the TAC). However, itdoes make it clear that the Minister must direct his or her mind to the extent of theallowance which should be made for the non-commercial interests before setting theTACC. He or she cannot determine what the commercial interests are and thensimply say there is nothing left for non-commercial interests and therefore it is notnecessary to consider those interests.[58] At the end of the day, the decision which the Minister makes must, to use thewords of Keith J in Westhaven Shellfish Ltd v Chief Executive of Ministry ofFisheries [2002] 2 NZLR 158 (CA), “bear in mind and conform with the purposes ofthe legislation”. That, in our view, is a different thing from saying that the specificprovisions of s 8(2) are mandatory relevant considerations in relation to individualdecisions. A similarly global approach to purpose was taken in the context of theResource Management Act in Bella Vista Resort Ltd v Western Bay of PlentyDistrict Council [2007] 3 NZLR 429 at [25] (CA).[59] When the Minister does apply his or her mind to the issue of whether aproposed decision conforms with the purpose of the Fisheries Act, the purpose towhich the Minister must have regard is the utilisation of fisheries resources whileensuring sustainability i.e. that expressed in s 8(1). The definitions in s 8(2) ofcourse guide the application of s 8(1), but the reference in the definition of utilisationto enabling people to provide for their social, economic and cultural wellbeing is notexpressed as a purpose of the Fisheries Act itself, but rather as an object of theconserving, using, enhancing and developing of fisheries resources. If Parliamenthad wished to require that the Minister, in the course of making allowance forrecreational fishers, had to direct his or her mind to their social, economic andcultural wellbeing, to the exclusion of the social, economic and cultural wellbeing ofany other sector of society, it needed to say so explicitly.[60] Mr Scott argued that the Judge had wrongly limited the scope of the referencein the definition of “utilisation” in s 8(2) to enabling people to provide for theirsocial, economic and cultural wellbeing. He said the Judge had effectively excludedthe interests of commercial fishers from consideration. We accept that the principalfocus of the Judge’s decision in relation to the TACC was on the factors identified at[59] of the Judge’s decision (summarised at [39] above). The Judge qualified thosefactors by adding at [60] that another relevant factor was “tangible value of the stockfor commercial interests to the extent that they provide for people’s wellbeing foremployment”. If that was intended to indicate that the social, economic and culturalwellbeing of commercial interests was limited to that of their employees, then wewould respectfully disagree. However, we doubt that that is in fact what the Judgemeant, because at [57] he had expressly said “utilisation of a fisheries resourceprovides for the economic wellbeing of commercial fishers whose livelihooddepends on income from that activity” and at [56] he had acknowledged theimportance of commercial fishers to New Zealand consumers.[61] Rather than dwelling on what the Judge did or did not mean, we simplyconfirm our view that the reference to enabling people to provide for their social,economic and cultural wellbeing in the definition of “utilisation” in s 8(2) does notexclude any sector of society, does not favour any particular interest (for examplerecreation over commercial), does not limit the relative weight which the Ministermay give to the interests of competing sectors and does not indicate any priority ofone interest over the other. Of course, the interests of commercial fishers are not justthe economic interests of the proprietors of the fishing businesses, but also includethose of employees, consumers who are able to purchase the fish as a result of thecommercial catch being sold at retail, fish merchants, suppliers to the commercialfishers and others affected by any relevant downstream effects of the location offishing businesses, such as processing businesses in particular geographicallocations. That is a non-exhaustive list. As with most aspects of the decisionmakingrole played by the Minister, the consideration of the wellbeing factorrequires a balance of competing interests, especially in the case of a shared fisherysuch as kahawai.[62] Our view of the relative importance of ss 21 and 8 is consistent with thatexpressed by this Court in New Zealand Fishing Industry Association (Inc) vMinister of Fisheries CA82/97 and CA83/97, CA96/97 22 July 1997. The parties allreferred to this case as “the Snapper case” and we will do the same.[63] In the Snapper case, the Court dealt with the requirement to make allowancefor recreational interests under s 21(1) in the following terms:To take recreational fishers as an example, the “allowance” is simply theMinister’s best estimate of what they will catch during the year, they beingsubject to the controls which the Minister decides to impose upon them e.g.bag limits and minimum lawful sizes. Having set the TAC the Minister ineffect apportions it between the relevant interests. He must make suchallowance as he thinks appropriate for the other interest before he fixes theTACC. That is how the legislation is structured … If over time a greaterrecreational demand arises it would be strange if the Minister was precludedby some proportional rule from giving some extra allowance to cover it,subject always to his obligation carefully to weigh all the competingdemands on the TAC before deciding how much should be allocated to eachinterest group … What the proportion [between interests] should be, if that isthe way the Minister looks at it from time to time, is a matter for theMinister’s assessment bearing in mind all relevant considerations.[64] There was no reference in that analysis to s 8(2) being a mandatory relevantconsideration, nor was there any reference to the need to have regard to social,cultural and economic factors. This can be contrasted with the Court’s comments inrelation to the decision to fix the TAC under s 13, where the Court said that s 13(3)imposed on the Minister “a clear obligation to move the stock towards MSY andwhen deciding upon the timeframe and the ways to achieve that statutory objectivethe Minister must consider all relevant social, cultural and economic factors”. Itnoted later that the question of which factors were relevant was prima facie for theMinister, but that his or her assessment in that regard could be subject to review onWednesbury principles.[65] In the present context it is notable that there is no expressed reference tosocial, economic and cultural factors in s 21(1) in contrast to s 13.[66] In the present case, although the Crown did not challenge the High Courtdecision, its counsel, Mr Ivory, did suggest that the Judge could have taken therecreational interests more directly into account by starting with s 21. That pointwas generally accepted also on the part of the recreational fishers, who accepted thatthe starting point was s 21, but argued that the Judge had been right to say that theMinister’s discretion was not wide, and that he was bound to consider social,economic and cultural wellbeing when allowing for recreational interests in thestock. In argument, counsel for the recreational fishers, Mr Galbraith QC, did,however, accept that the reference in s 8(2) to social, economic and culturalwellbeing had to apply equally to commercial interests. Both Mr Ivory andMr Galbraith accepted that, if the Judge had meant to indicate that commercialinterests were not to be taken into account, then that was wrong.[67] The recreational fishers argued that the Snapper case wrongly excluded s 8factors, and reduced the making of an allowance for recreational interests to amathematical formula based on an estimate of recreational catch. They argued thatthese comments in the Snapper case were obiter and that we should not follow them.We see no reason not to follow them. The comments were made after full argumentby a Full Court, and we see no reason to depart from them. Having said that, wedisagree that they imply that a purely mathematical exercise is called for.[68] We also accept Mr Scott’s submission that, contrary to the observation by theHigh Court Judge (see [39](c) above), the common law right to fish should not havebeen seen as a right which related to recreational fishing only. The common lawright to fish was not limited to fishing for any particular purpose.[69] Drawing all these threads together, we conclude that the Minister’s decisionin relation to TACC is a decision which must be made in terms of s 21(1). TheMinister must, having set the TAC, make allowance for recreational (and customary)interests. The Minister is required to determine what allowance must be made forrecreational fishers before setting the TACC, but there is nothing in s 21(1) whichindicates that in making that allowance the Minister must take into account thesocial, economic and cultural wellbeing of recreational fishers to the exclusion of, orin preference to, the social, economic and cultural wellbeing of commercial fishersand those who depend on them. The decision which the Minister makes unders 21(1) must conform with the purpose of the Fisheries Act as expressed in s 8(1),but the governing provision is s 21(1), not s 8(1).Did the Minister have regard to qualitative factors?[70] The commercial fishers argue that the Minister must have had regard to thefactors which the recreational fishers say were relevant, the qualitative factors,because the allowance which he made for recreational interests was essentially thatfor which the recreational interests had contended (with a variation of less than10%). It is factually correct that the recreational interests got substantially what theyhad contended for, and so are not well placed to complain about the result. But werecognise that the case was argued at a level of principle. We do not see this sort ofreverse engineering of the Minister’s decision as helpful, particularly now that thisjudgment is essentially an exercise in providing guidance for future decision-making.The Minister could have reached a (broadly) correct decision by an incorrect processof reasoning. We intend to focus on the basis on which the Minister expressed hisreasoning (and the advice contained in the IPP and FAP which provides a backdropto that reasoning).[71] The recreational fishers’ criticism of the Minister was that his allowance forrecreational fishers was based substantially on catch history, and did not havesufficient regard to the fact that recreational fishers value kahawai much more highlythan commercial fishers for whom it is a low value catch (it is, however, animportant component in the purse seine fishery, being one of a number of speciescaught by that fishing method).[72] All parties were agreed that MFish advised the Minister on qualitative factorsand that he was therefore well informed of those factors. The difference between theparties is as to whether MFish’s advice led the Minister to believe that he wasentitled to disregard those factors and rely on catch history only. That was stronglyargued by Mr Galbraith. On behalf of the Crown, Mr Ivory accepted this criticism ofthe advice given by MFish to the Minister and accepted that the Minister had beenled to believe he could, and therefore did, exclude qualitative factors and rely onlyon catch history.[73] The Minister was entitled to have a policy preference for catch history as thebasis for the TACC decision: it is not unlawful for the decision-maker to have policypreferences so long as the Minister does not allow the preference to fetter hisdiscretion: Westhaven.[74] The High Court considered that following the preferred approach had led tothe Minister proceeding “on the premise that quantitative measures [allocation byreference to previous catch history] also served to provide an exhaustive measure ofintangible or qualitative factors” and that MFish’s analysis of social and culturalwellbeing was solely a quantitative exercise: at [63].[75] The question for us, given our conclusion on the role of s 8(1), is whetheradopting the catch history (or “claims based”) approach led the Minister to makeallocations of the TAC to recreational, customary and commercial fishers whichfailed to “bear in mind and conform with the [s 8] purposes of the legislation” (to usethe words of Keith J in Westhaven).[76] Mr Galbraith said recreational fishers’ past catch was depressed by the effectsof commercial fishing in the past, so it was a poor indicator of the value of thefishery to them. On the other hand, Mr Scott said the commercial catch historyreflected restrictions from purse seine catch limits and voluntary restrictions on thecommercial catch which had existed for 15 years.[77] A potential problem with basing allocations on qualitative factors (or “utilityvalue”) is the difficulty in obtaining accurate information and in finding a way tomeasure those factors for the purposes of undertaking the exercise of weighing thecompeting claims of recreational, customary and commercial interests in the TAC.[78] Recreational fishers pointed to a study which suggested that the value placedon kahawai by recreational fishers was 11 to 16 times greater than that ofcommercial fishers. They accept that this and other information about recreationalfishers’ concerns (particularly their concerns about reduced numbers and size ofkahawai caught by recreational fishers) was set out in the IPP and FAP for bothyears. Those concerns must have been factors in the Minister’s decision in bothyears to reduce the overall level of the TAC. But they say that the reduction in theTAC should not have been proportionately reflected in the TACC and recreationalallowance, and would not have been so reflected if the Minister had taken intoaccount these qualitative factors. They argued that MFish’s concern about possiblecompensation claims from commercial fishers was an underlying cause of itspreference for the catch history approach.[79] One of the difficulties in evaluating these contentions is the sheer length ofthe IPP and FAP in each of the relevant years. Each party pointed to extracts fromthese reports which were said to support its case. Having read these documents inthe round, we consider that MFish’s advice was such that the Minister was fairlyapprised of the qualitative factors which recreational fishers emphasised, informed ofMFish’s preference for a catch history approach and the reasons for that preference,and left with the option of deciding which approach he favoured. His choice of thecatch history approach was reasonable given the inherent lack of precision in theavailable information and the difficulty of attributing a value to the qualitativefactors for the purpose of weighing those against factors relating to commercial use.He was advised in the FAPs for both 2004 and 2005 that the allocations proposed byMFish, derived from catch history reflected “competing [recreational andcommercial] demands [on the fishery], current use in the fishery, and the socioeconomiceffects of current versus reduced use”. We cannot say that a decisionmade on this basis failed to conform to the purpose of the Fisheries Act as set out ins 8(1). Having said that, we consider that it would also have been open to theMinister to proceed on the basis of a proper evaluation of the qualitative factorsreferred to by the recreational fishers (appropriately balancing those against therelevant interests of commercial fishers).[80] We do not agree with the High Court Judge that a “utilisation approach” (i.e.one based on subjective evaluation of qualitative criteria) is mandatory. Nor do weagree with his criticism of MFish’s attempt to evaluate the extent of the qualitativefactors by economic modelling. Leaving the decision-making criteria to a subjectiveevaluation of unquantified and unquantifiable wellbeing factors relating torecreational fishers, which would then have had to be weighed against similarlyvague commercial factors, would not have necessarily led to a better quality decisionthan that actually taken. The reality is that the Fisheries Act requires decisions aboutfisheries to be made in circumstances where the available information is oftenlimited and unreliable. In those circumstances the Minister is entitled to take anapproach to the allocations leading to the setting of a TACC which reflects catchhistory if he is satisfied that that provides a reasonable basis for the assessment of theinterests of the competing claimants to the TAC. On the other hand, he should notadopt as an inflexible rule a catch history approach: each decision must be made onits merits in light of the best available information.[81] We are conscious that the Minister’s counsel conceded error on theMinister’s part. It was conceded that the Minister was advised by MFish that hecould assess the recreational interests on the basis of a catch history approach anddid so, thereby excluding from the decision the detailed information the Minister hadabout recreational interests. We consider that the decision to allocate on a catchhistory basis was made only after consideration of the qualitative factors (whichinfluenced his decision to reduce the TAC in both years) and on the basis that theallocation of the reduced TAC on a catch history basis would, on a broad brushbasis, provide for those qualitative factors.[82] We would not make a declaration to the effect of para (a) of the High Courtrelief (see [5] above). As the Minister has agreed to revisit both the TAC and TACCdecisions, this may be of little significance. If the Minister is of the view that,contrary to what we have said, a catch history approach excludes from considerationrelevant matters, he can bring them to account when reconsidering the position.[83] For the above reasons, we allow the commercial fishers’ appeal against theJudge’s decision to make a declaration that the 2004 and 2005 decisions wereunlawful to the extent that the Minister fixed the TACC for each KAH area withouthaving regard to the social, economic and cultural wellbeing of the people.Did the Minister correctly apply the requirements of the HGMPA in makingthe TAC and TACC decisions for KAH1 in 2004 and 2005?[84] This aspect of the case concerns the decisions on the TAC and TACC forKAH1 only. That area includes the Hauraki Gulf, though the Gulf makes up only asmall portion of the area covered by KAH1. The TAC and TACC decisions for allother areas are unaffected by this argument.[85] In the High Court, Harrison J found that the Minister had failed to haveregard for the HGMPA’s provisions when setting the TAC for KAH1 in 2004 and2005. He said that the Minister was obliged to pay particular regard to the social,economic, recreational and cultural wellbeing of the people of the Hauraki Gulf, andin particular to maintain and enhance its physical resources in the form of kahawaistock: at [81]. He said that a self-contained enquiry was necessary by expressreference to the wellbeing factors relating to the people in the Hauraki Gulf: at [82].However, he found that there was no requirement to have regard to the HGMPAwhen fixing the TACC for KAH1: at [76].[86] The commercial fishers appeal against the Judge’s decision that the Ministerfailed to have regard to the HGMPA in setting the TAC for KAH1. They seek thequashing of the High Court declaration to that effect.[87] The recreational fishers cross appeal against the Judge’s finding that therewas no requirement to have particular regard to the HGMPA when fixing the TACCfor KAH1. They seek a declaration that the Minister failed to meet that requirement.[88] Three issues therefore arise:(a) Was the Minister obliged to have particular regard to the HGMPAwhen setting the TACC for KAH1?(b) Did the Minister fail to have regard to the HGMPA when setting theTAC for KAH1?(c) Did the Minister fail to have particular regard to the HGMPA whensetting the TACC for KAH1?[89] We will deal with (a) first, then deal with (b) and (c) together.Was the Minister obliged to have particular regard to the HGMPA when setting theTACC?[90] We can deal with this issue briefly. The commercial fishers and the Ministerconcede that the recreational fishers are right that the HGMPA must be considered inthe context of the TACC decision. We agree. Section 13 of the HGMPA applies.That section says that persons exercising powers or carrying out functions for theHauraki Gulf under any Act specified in Schedule 1 (as the Fisheries Act is) must, inaddition to any other requirements specified in those Acts, have “particular regard”to ss 7 and 8 of the HGMPA. We therefore allow the cross appeal of the recreationalfishers to this extent.Did the Minister have regard/particular regard to the HGMPA in setting the TACand the TACC?[91] Sections 7 and 8 of the HGMPA provide:7 Recognition of national significance of Hauraki Gulf(1) The interrelationship between the Hauraki Gulf, its islands, andcatchments and the ability of that interrelationship to sustain thelife-supporting capacity of the environment of the Hauraki Gulfand its islands are matters of national significance.(2) The life-supporting capacity of the environment of the Gulf andits islands includes the capacity-(a) to provide for -(i) the historic, traditional, cultural, and spiritualrelationship of the tangata whenua of the Gulf withthe G and(ii) the social, economic, recreational, and culturalwell-being of people and communities:(b) to use the resources of the Gulf by the people andcommunities of the Gulf and New Zealand for economicactivities and recreation:(c) to maintain the soil, air, water, and ecosystems of theGulf.8 Management of Hauraki GulfTo recognise the national significance of the Hauraki Gulf, its islands,and catchments, the objectives of the management of the HaurakiGulf, its islands, and catchments are—(a) the protection and, where appropriate, the enhancement of thelife-supporting capacity of the environment of the Hauraki Gulf,its islands, and catchments:(b) the protection and, where appropriate, the enhancement of thenatural, historic, and physical resources of the Hauraki Gulf, itsislands, and catchments:(c) the protection and, where appropriate, the enhancement of thosenatural, historic, and physical resources (including kaimoana) ofthe Hauraki Gulf, its islands, and catchments with whichtangata whenua have an historic, traditional, cultural, andspiritual relationship:(d) the protection of the cultural and historic associations of peopleand communities in and around the Hauraki Gulf with itsnatural, historic, and physical resources:(e) the maintenance and, where appropriate, the enhancement of thecontribution of the natural, historic, and physical resources ofthe Hauraki Gulf, its islands, and catchments to the social andeconomic well-being of the people and communities of theHauraki Gulf and New Zealand:(f) the maintenance and, where appropriate, the enhancement of thenatural, historic, and physical resources of the Hauraki Gulf, itsislands, and catchments, which contribute to the recreation andenjoyment of the Hauraki Gulf for the people and communitiesof the Hauraki Gulf and New Zealand.[92] The Minister must have particular regard to ss 7 and 8 of the HGMPA inrelation to the TACC, but is required only to have regard to ss 7 and 8 of theHGMPA in relation to the TAC decision. The reason for this discrepancy is thats 11(2) of the Fisheries Act (as amended by the HGMPA) requires that, beforesetting or varying any sustainability measure under s 11(1), the Minister shall have“regard” to ss 7 and 8 of the HGMPA for the Hauraki Gulf. There is no dispute thatthe TAC is a sustainability measure, as s 2 of the Fisheries Act defines it as such.The requirement in s 13 of the HGMPA to have particular regard to ss 7 and 8 of theHGMPA does not apply in relation to the TAC, because s 13 of the HGMPA doesnot apply if any of ss 9 to 12 (of the HGMPA) provide otherwise. Section 12 of theHGMPA does provide otherwise because it amends s 11(2) of the Fisheries Act inthe manner referred to above.[93] The result of all of that is that the requirement in relation to the TAC is tohave “regard” (not “particular regard” as the High Court Judge said at [81]) to ss 7and 8 of the HGMPA: s 11(2) of the Fisheries Act. In contrast, the requirement inrelation to the TACC is to have “particular regard” to those sections: s 13 of theHGMPA.[94] We think the requirement to “have regard” to a matter is readily understood.What is required is that the matter is considered, but not that it necessarily influencesthe decision. As Cooke P put it in New Zealand Fishing Association v Ministry ofAgriculture and Fisheries [1988] 1 NZLR 544 at 551 (adopting the words ofMcGechan J at first instance):He is directed by s 107G(7) to “have regard” to any submissions made.Such submissions are to be given genuine attention and thought. That doesnot mean that industry submissions after attention and thought necessarilymust be accepted. The phrase is “have regard to” not “give effect to”. Theymay in the end be rejected or accepted only in part. They are not, however,to be rebuffed at outset by a closed mind so as to make the statutory processsome idle exercise.[95] We are content to adopt that formulation in the present context as well. Therequirement is to give the matter genuine attention and thought, but it remains opento the decision-maker to conclude that the matter is not of sufficient significance tooutweigh other contrary considerations.[96] The requirement to have “particular regard” is more problematic. InTakamore Trustees v Kapiti Coast District Council [2003] NZRMA 433 at 455(HC), Ronald Young J described an obligation to have particular regard to matterslisted in s 7 of the Resource Management Act as creating “not just an obligation tohear and understand what is said, but also to bring what is said into the mix ofdecision making”. In a similar context, Blanchard J in Quarantine Waste NZ Ltd vWaste Resources Ltd [1994] 12 NZRMA 529 at 542 (HC) approved a formulation bythe Planning Tribunal that an obligation to have particular regard was one which putthe Court under a duty to be on inquiry.[97] The provisions in issue in those cases can be contrasted with the requirementof s 28A of the Matrimonial Property Act 1976 to have particular regard to the needto provide a home for children of a marriage when deciding whether to order that aspouse be permitted to occupy the family home. That provision was said by JudgeInglis in the Family Court to require the Court not only to be especially careful not tooverlook the matter, but also “to give greater weight to that factor in itsdetermination than the ‘other relevant circumstances’ which the Court may take intoaccount”: Wheeler v Wheeler (1984) 2 NZFLR 385. That formulation was approvedby Thorp J in Sweeney v Sweeney [1985] 2 NZLR 673 (HC).[98] The above formulations reflect the importance of the context in which therequirement to have particular regard to a matter arises. In the Wheeler case, therequirement related to a single and self-evidently important factor in the overalldecision. By contrast, in the present case the requirement is to have particular regardto a series of broadly expressed factors in relation to a range of decisions that may ormay not h}