Sustainable Fishing and Tourism Inc v Minister for Fisheries and Anor

4. In addition to a commercial fishing licence granted pursuant to s 103 of the FM Act, the Minister has also granted fishing boat licences to the second respondent pursuant to s 108 of the FM Act and has granted renewals of those licences from time to time pursuant to s 108(4)(c) and cl 146 of the Regulations. It is also alleged that the Minister failed to comply with s 111 and s 112 of the EP&A Act in respect of the grant and renewal of those licences.

5. When the proceedings were commenced the original challenge was to the issue of licences to the second respondent by the Minister for Fisheries on 15 April 1998. There has since been an annual renewal of the licences and no point of distinction is taken between the mechanism used by the Minister in each case for the annual renewal of the licences.

6. Pursuant to s 104 of the FM Act, any eligible person may apply to the Minister for a commercial fishing licence.

7. The provisions of s 104(3) assumed critical significance during submissions. This provision is as follows:- (3) The Minister is required to issue a licence to an eligible applicant unless the Minister is authorised by the regulations to refuse the application.

8. Regulation 137 is as follows:- 137 Grounds for refusal to issue commercial fishing licence to otherwise eligible applicant

(1) For the purposes of section 104(3) of the Act, the Minister is authorised to refuse to issue a commercial fishing licence to an eligible applicant if: (a) the applicant has been convicted of an offence under the Act or regulations made under the Act or of an offence relating to commercial fishing operations under the law of the Commonwealth, another State, a Territory or New Zealand, or

(b) the applicant has been convicted of an offence relating to the theft of fish, fishing gear or a boat or intentional damage to fishing gear or a boat, or

(c) the applicant has been convicted of an offence relating to an assault on a fisheries official, or

(d) the applicant has not paid any fee or contribution due and payable in connection with the issue of his or her licence, or

(e) the Minister is satisfied that the applicant has not demonstrated that he or she has the capacity or qualifications necessary to enable the individual to successfully engage in commercial fishing operations. (2) Subclause (1)(e) does not apply to an applicant who is eligible for a commercial fishing licence by virtue of cl 135(1)(e) or (f).

9. Section 108(1) and (3) are to the same effect in relation to the issue of a licence for a boat.

10. Regulation 144 provides as follows:- 144 Grounds for refusal to issue fishing boat licence For the purposes of section 108(3) of the Act, the Minister is authorised to refuse to issue a fishing boat licence if:

(a) the boat is not licensed under the Act at the commencement of this Regulation (unless paragraph (b) applies), or

(b) the boat replaces another boat ( the original boat ) that is licensed under the Act or for which the licence is in abeyance under clause 149: (i) the Minister is of the opinion that the boat concerned is not of sufficiently similar dimensions or characteristics to the original boat, or (ii) the licence for the original boat has been in abeyance for a period of more than 2 years, or (b1) the application for the fishing boat licence is an application for renewal of an expired fishing boat licence that is treated as an application for issue of a fishing boat licence in accordance with clause 146(8) and that is received by the Minister more than 2 years after the date the licence would (but for clause 146(6)) have expired, or (c) in the case of a boat licensed under the Act at the commencement of this Regulation, the boat was sold or disposed of after that commencement or the right to a fishing boat licence for the boat was transferred after that commencement (unless the transfer of the right to a licence for the boat to the applicant has been approved by the Director under clause 150), or

(d) the Minister is authorised to refuse to issue a licence in respect of the boat under a share fishery management plan, or

(e) the owner of the boat has been convicted of an offence under the Act or regulations made under the Act or of an offence relating to commercial fishing operations under the law of the Commonwealth, another State, a Territory or New Zealand and the Minister is satisfied that the boat was used by that owner for or in connection with the commission of the offence, or

(f) the owner of the boat has been convicted of an offence relating to the theft of fish, fishing gear or a boat or intentional damage to fishing gear or a boat, or

(g) the owner of the boat has been convicted of an offence relating to an assault on a fisheries official, or

(h) the applicant has not paid any fee due and payable in connection with his or her fishing boat licence.

11. The applicant relies on that part of the definition of "activity" in s 110 of the EP&A Act which means "the use of land" .

12. Section 111(1) and (4) of the EP&A Act are reproduced together with s 112(1)(a)(i) and (ii) and (1B):- Duty to consider environmental impact 111(1) For the purpose of attaining the objects of this Act relating to the protection and enhancement of the environment, a determining authority in its consideration of an activity shall, notwithstanding any other provisions of this Act or the provisions of any other Act or of any instrument made under this or any other Act examine and take into account to the fullest extent possible all matters affecting or likely to affect the environment by reason of that activity.

(4) Without limiting subsection (1), a determining authority must consider the effect of an activity on: (a) critical habitat; and (b) in the case of threatened species, populations and ecological communities, and their habitats, whether there is likely to be a significant effect on those species, populations or ecological communities, or those habitats; and (c) any other protected fauna or protected native plants within the meaning of the National Parks and Wildlife Act 1974.

Decision of determining authority in relation to certain activities 112(1) A determining authority shall not carry out an activity, or grant an approval in relation to an activity, being an activity that is a prescribed activity, an activity of a prescribed kind or an activity that is likely to significantly affect the environment (including critical habitat) or threatened species, populations or ecological communities, or their habitats, unless - (a) the determining authority has obtained or been furnished with and has examined and considered an environmental impact statement in respect of the activity - (i) prepared in the prescribed form and manner by or on behalf of the proponent; and (ii) except where the proponent is the determining authority, submitted to the determining authority in the prescribed manner;

(1B) Without limiting subsection (1), a determining authority must not carry out an activity, or grant an approval in relation to an activity, being an activity that is in respect of land that is, or is a part of, critical habitat or is likely to significantly affect threatened species, populations or ecological communities, or their habitats, unless a species impact statement, or an environmental impact statement that includes a species impact statement, has been prepared (in each case) in accordance with Division 2 of Part 6 of the Threatened Species Conservation Act 1995.

13. The applicant raises the following issues for determination:- 1. Did the commercial taking of fish in 1998-1999 in the estuary of the Manning River near Taree constitute a "use of land" for the purposes of s 110(1)(a) of the EP&A Act?

2. Did the commercial taking of fish from those waters constitute an "activity" for the purposes of Part 5 of the EP&A Act?

3. Was the Minister at the time of issue of the licences to Mr Whatson in April 1998 and again in March 1999 a "determining authority" in relation to that activity for the purposes of Part 5 of the EP&A Act?

4. Was the Minister, before issuing the licences to Mr Whatson under s 104 of the Fisheries Management Act in April 1998 and in March 1999, bound pursuant to s 111 of the EP&A Act to examine and take into account to the fullest extent possible all matters affecting or likely to affect the environment by reason of that activity?

5. Was the Minister under s 111(4) of the EP&A Act required to consider the effect of the activity on threatened species?

6. Did the Minister examine or take into account to the fullest extent possible, all matters affecting or likely to affect the environment by reason of the taking of fish by Mr Whatson in the circumstances contemplated by the licence applications?

7. Was the commercial taking of fish from those waters likely to significantly affect the environment?

8. Was the Minister, pursuant to s 112 of the EP&A Act, prior to issuing the licences to Mr Whatson in April 1998 and in March 1999, required to obtain an environmental impact statement in respect of the activity authorised by the licences?

9. Did the Minister by virtue of general research, planning and policy which had been developed since the introduction of the 1994 Act and the knowledge gained prior to consideration of the 1998 and 1999 applications by Mr Whatson in fact comply fortuitously with the requirements of s 111 or s 112 of the EP&A Act postulated in Questions 7 and 8 above?

10. What relief should be granted to the applicant and in particular should an injunction be refused on discretionary grounds?

Does the commercial taking of fish constitute a use of land and thus an activity within Pt 5 of the EP&A Act?

It is not disputed that the fishing activities of the second respondent, in so far as they took place in the Manning River estuary around Taree, were not acts, matters or things for which development consent under Pt 4 of the EP&A Act was required or had been obtained, nor were they prohibited under an environmental planning instrument or exempt development for the purposes of s 110 of the EP&A Act.

It is admitted on the pleadings that consistently with the definition of land in s 4 of the EP&A Act the land and waters of the Manning River estuary constitute "land" for the purposes of the EP&A Act.

However, it is not admitted that the taking of fish from the Manning River estuary constitutes a "use of land" and hence is an "activity" for the purposes of s 110 of the EP&A Act.

The applicant relies on several authorities which consider the use of land in various contexts to make the submission that a minor, even passive, use or a use incidental to another use constitutes a use of land for the purposes of the EP&A Act ( Steedman and Anor v Baulkham Hills Shire Council (No 2) (1993) 31 NSWLR 562; Tweed Byron Local Aboriginal Land Council v Minister Administering the Crown Lands (Consolidation) Act (1990) 72 LGRA 177; Minister Administering the Crown Lands (Consolidation) Act v Tweed Byron Local Aboriginal Land Council (1992) 75 LGRA 133; Worimi Local Aboriginal Land Council v Minister Administering the Crown Lands Act and Anor (1991) 72 LGRA 149; Minister Administering Crown Lands Act v NSW Aboriginal Land Council (1993) 31 NSWLR 106; Daruk Local Aboriginal Land Council v Minister Administering the Crown Lands Act (1993) 30 NSWLR 140; Lizzio v Ryde Municipal Council (1983) 155 CLR 211; Newcastle City Council v Royal Newcastle Hospital (1957) 96 CLR 493; Mulcahy v Blue Mountains City Council (No 2) (1995) 87 LGERA 422). These cases in the main are not useful for present purposes, dealing as they do with existing use rights, the effect of the provisions of the Aboriginal Land Rights Act 1983 or other distinguishing circumstances.

The relevant use by the second respondent is said to be a use of publicly available land which involves human use of the waters and bed of the estuary, the shore and the vegetation on the bed and in the inter-tidal zone, and the taking of animals from it.

The evidence establishes:- (a) the second respondent engaged in commercial prawn hauling, amongst other commercial fishing activities on the Manning River estuary and elsewhere between Hawkesbury and Ballina;

(b) significant bycatch is caught in the nets and destroyed, fed to the pelicans or otherwise removed from the estuary;

(c) bream, flathead, luderick, mullet, mulloway, shark, tailor, whiting, crabs and prawns are amongst the species in the catch reported from time to time by the second respondent during the relevant period;

(d) the methods used by the second respondent include prawn hauling, mesh netting, fish hauling, crab trapping, set pocket netting, prawn and seine netting;

(e) the respondent operates six boats and works seasonally on a regular basis in conjunction with other fishers, usually under a sharing arrangement, although each individual fisher holds a separate licence and makes his own return.

The applicant presented video evidence of persons apparently fishing at various places in the Manning River estuary.

Except on a very limited basis, Mr Whatson did not concede he was one of the persons depicted in the video, nor was it otherwise proved to the Court's satisfaction that the film established any relevant aspect of the second respondent's activities.

Although the applicant concentrated on evidence of the physical actions of the second respondent, the Court has reached the view that the critical matter to be decided within the ambit of the EP&A Act is what activity was the subject of the Minister's approval under s 104(3) and s 108(3) of the FM Act, if any.

In its Amended Points of Claim the applicant refers to certain waters as being the ocean and estuaries in the vicinity of Manning and Taree whereas the commercial fishing licence authorises the taking of fish for sale in the Ocean Hauling Restricted Fishery and the Estuary General Restricted Fishery. The fishing boat licences do not on their face constrain operations to any particular area.

Both fisheries described in the commercial fishing licence are defined according to the Regulations and encompass an area well beyond the Manning estuary around Taree.

Although s 4 of the EP&A Act includes the sea, a body of water or a river in the definition of "land" , the respondents nevertheless submit that for an activity to involve the use of land for the purpose of s 110, that use must be of some substance and permanence and involve a use to which the land in question is in some sense committed, rather than some transitory act, such as fishing, which occurs briefly on the land, albeit that the activity may be repeated with some degree of regularity (see Moore v Kwiksnax Mobile Industrial and General Caterers Pty Ltd; Ex parte Kwiksnax Mobile Industrial and General Caterers Pty Ltd (1990) 70 LGRA 38 at 40-41 per Connolly J). The Court was dealing with a specific statutory definition of "use" in Kwiksnax .

In Rundle v Tweed Shire Council and Anor (1989) 68 LGRA 308 Bignold J found that herbicidal spraying of a noxious plant infestation on land could not be described as "use of land" . In his Honour's opinion it is far too artificial to be either a meaningful or apposite description and does not accord with the established meaning of the concept of "land use" in a town planning or environmental planning context (p 323).

The first respondent referred to the issue of a licence for the purpose of driving a motor vehicle on a public road, a hunting permit that authorises shooting within a State forest and the use of footpaths and streets generally all of which have some transitory association with land but do not involve "the use of land" in the relevant sense.

The question of what is a use of land in the present context is one of fact and degree.

The observation of Taylor J in Royal Newcastle Hospital at 515 demonstrates this point:- The word 'used' is, of course, a word of wide import and its meaning in any particular case will depend to a great extent upon the context in which it is employed. The uses to which property of any description may be put are manifold and what will constitute 'use' will depend to a great extent upon the purpose for which it has been acquired or created.

Care needs to be taken to read the above observations in the statutory context under consideration by the High Court, but nevertheless they provide some assistance in determining how broad the approach can be.

The issue of a licence to drive a motor vehicle on public roads in the State of New South Wales does not fall for determination in these proceedings and the Court should not be influenced by the complicating prospect that it may authorise an activity involving the use of land for the purpose of Pt 5 of the EP&A Act. What is authorised by the subject licences is the relevant consideration.

The commercial fishing licence specifically identifies the fisheries within which the second respondent may operate. The authorised use is particular and real. It is not transitory whilever the enterprise of netting a catch is taking place. There is nothing artificial about the concept of a fisher, or a group of fishers, using the seas for the purpose of farming the produce as a commercial enterprise. A rural property comprising an area of hundreds of square kilometres used for grazing is nonetheless a use of land, although the carrying capacity for each hectare may bear no relationship to the intensity of use of riparian land under cultivation. So it is with a licence to use a wide ranging area of the sea that has the significant economic aim of harvesting marine creatures whilst utilising equipment specifically designated for the purpose.

In other words, the sea is employed by Mr Whatson for a profitable end to the effect that he must be regarded as using the sea as others might take the natural products or fruits of land.

The "amorphous and virtually unlimited extent" of the land on which Mr Whatson can carry out his authorised fishing, as referred to by the second respondent in submissions, is not, in my view, to the point except in so far as it may direct attention to the prospect of wide spread impacts as a consequence of the activities.

The Minister contends that, because fish are wild and not capable of being held as private property until caught, the sea is simply the surrounding physical context in which the activity takes place. They do not form an inherent part of the land in the way minerals and forests do. I cannot see how this takes the respondents' case any further where what has to be considered is the use of the sea (land) for the purpose of recovery or harvesting the wild animals.

The use cannot be regarded as ancillary or incidental to any other private or public use because the individual fishers go about their business in a distinct and purposeful way without reference to any other activity.

The Court is therefore satisfied that the commercial fishing licence authorises the relevant use of land.

Because the commercial taking of fish is to be properly categorised as a use of land within the meaning of s 110, it follows that it constitutes an activity for the purpose of Pt 5 of the EP&A Act, it having been conceded that the fishing activities of the second respondent were not matters, acts or things for which development consent is required or has been obtained, nor were they prohibited or exempt development.

The fishing boat licences do not fall within the scope of a permit or approval to use land in the relevant sense as, firstly, they do not relate to any particular land, and secondly, the use authorised by the licence, if any, is merely transitory and incidental.

The authority given by the boat licence is to use the boat itself, albeit for a particular purpose.

Was the Minister a "determining authority" at the time of the issue of the licence?

An approval under s 110(1) includes a consent, licence or permission or any form of authorisation.

Prima facie the Minister falls within the definition of "determining authority" because his approval is required in order to enable the activity to be carried out.

It is conceded by Dr Griffiths, appearing for the Minister, that in making the licensing decisions, the Minister did not directly address his mind to the provisions of s 111 and s 112 of the EP&A Act. However, Dr Griffiths emphasised that the above concession is not to be exaggerated to the point where it is said the Minister did not consider environmental matters within the confines of the FM Act and the Regulations.

Mr Francey, counsel appearing for the second respondent, drew the Court's attention to the provisions of s 221B(5) of the FM Act:- (5) For the avoidance of doubt, it is declared that the Director is not a determining authority for the purposes of Part 5 of the Environmental Planning and Assessment Act 1979 when granting a licence.

Section 221B is found within Div 6 of Pt 7A which deals with the grant of licences to harm threatened species, populations or ecological communities or damage habitat.

I agree with Mr Francey that the express provision in s 221B(5) cannot be interpreted as an admission that, otherwise, the Minister, in granting a licence, is subject to the provisions of Pt 5 of the EP&A Act. However, the second respondent contends that the effect of s 104(3) of the FM Act which requires the Minister to issue a licence, unless he is authorised by the Regulations to refuse the application, takes the process of the approval outside the provisions of Pt 5 of the EP&A Act.

The discretion to refuse to issue a licence is limited by reg 135 and reg 137. Accordingly, the scope of the discretion of the Minister pursuant to s 104 is circumscribed by s 104(3). There is no power to refuse an application for a commercial fishing licence in the exercise of a wider discretion. Thus, according to the respondents, the Minister is not a determining authority as defined in s 110.

This issue was further addressed in supplementary written submissions by leave given after the formal hearing had concluded.

The absence of a discretion whether to grant a commercial fishing licence pursuant to s 104 is to be contrasted with the wider discretion vested in the Minister by other provisions of the FM Act where the Director may grant an application, unconditionally or subject to conditions or restrictions, or refuse the application, for example, if the application is made under Div 6 of Pt 7A (see s 221B(1)).

Mr Francey submits that s 112 of the EP&A Act is totally inconsistent with s 104(3) of the FM Act because s 112 precludes the grant of an approval that is likely to significantly affect the environment unless an EIS has been obtained.

It must be noted however that s 111 of the EP&A Act is not to the same effect as s 112. It merely dictates that a determining authority "in its consideration of an activity" shall "take into account to the fullest extent possible all matters affecting or likely to affect the environment by reason of that activity" . Section 111(4) places particular emphasis on the effect of an activity on critical habitat, threatened species and protected fauna or flora.

Section 104(4) of the FM Act provides that a commercial fishing licence is subject to such conditions as are prescribed by the Regulations or specified in the licence. Regulation 138 prescribes conditions for the purposes of s 104(4)(a). There is no direct provision regarding environmental harm in general terms within reg 138 although, presumably, some of the constraints such as the temporal limit on the taking of fin fish pursuant to reg 138(1)(d) pays regard to an environmental concern in respect of particular species.

Nevertheless, the FM Act does not place any constraint on the Minister's power to specify conditions in the licence. Although he may be constrained from refusing the application except in accordance with the Regulations, he nonetheless may impose conditions which could pay regard to other matters such as those affecting or likely to affect the environment by reason of the commercial fishing activity.

I do not agree with Mr Francey's bold submission that s 104 of the FM Act is basically a machinery process whereby if the applicant is an eligible person in accordance with reg 135, the Minister can only refuse to issue the licence on the grounds set out in reg 137. Although this may be a correct statement of the law, nevertheless it overlooks the capacity of the Minister to impose conditions on a fishing licence in the exercise of a wide discretion.

The Court has not been directed to any provision of the FM Act which requires the Minister to issue the licence within a prescribed time. A strict reading of s 112(1) shows that it merely precludes the determining authority from granting an approval until it has obtained or been furnished with and has examined and considered an EIS. Section 112(1A) and (1B) are to a similar effect.

Section 112(4)(a)(ii) expressly allows the Minister to disapprove of the activity. To that extent there is an inconsistency between the EP&A Act and the FM Act. However that does not necessarily lead to the conclusion that s 112 of the EP&A Act otherwise does not apply to the Minister in the course of determining an application for a fishing licence.

Regard must be had to s 112(6) of the EP&A Act which provides:- (6) The provisions of subsection (4) have effect notwithstanding any other provisions of this Act or the provisions of any other Act or of any instrument made under this or any other Act.

The first respondent argues that there is a clear and fundamental inconsistency between the two statutory regimes within the meaning of the relevant legal principles enunciated in Goodwin v Phillips (1908) 7 CLR 1 at 7 per Griffith J as follows:- … where the provisions of a particular Act of Parliament dealing with a particular subject matter are wholly inconsistent with the provision of an earlier Act dealing with the same subject matter, then the earlier Act is repealed by implication. It is immaterial whether both Acts are penal Acts or both refer to civil rights. The former must be taken to be repealed by implication. Another branch of the same proposition is this, that if the provisions are not wholly inconsistent, but may become inconsistent in their application to particular cases, then to that extent the provisions of the former Act are excepted or their operation is excluded with respect to cases falling within the provisions of the later Act.

The second respondent contends that by necessary implication, the less discretionary provisions of s 104(3) and s 108(3) override inconsistent provisions in the antecedent EP&A Act without the need for an avoidance of doubt provision such as is contained in s 221B.

The judgment of Fullagar J in Butler v Attorney General (Vic) (1961) 106 CLR 268 at 275-276 is often quoted in regard to the doctrine of implied repeal:- The books contain, of course, plenty of examples of an implied repeal - total or partial - of an earlier statute by a later statute of the same legislature. But it is a comparatively rare phenomenon, and it has been said again and again that such a repeal will not be held to have been effected unless actual contrariety is clearly apparent. I would say that it is a very rare thing for one statute in affirmative terms to be found to be impliedly repealed by another which is also in affirmative terms. … there is a very strong presumption that the State legislature did not intend to contradict itself, but intended that both Acts should operate.

In a more recent decision in South Australia v Tanner (1989) 166 CLR 161 the High Court held there to be no conflict between a regulation made under one Act and a section of a later Act. In explaining how the doctrine of implied repeal operates, Wilson, Dawson, Toohey and Gaudron JJ in a joint judgment said the following at 170:- The Solicitor-General argued that there is no inconsistency. Both pieces of legislation can stand together and operate cumulatively. They can do this because each Act has a distinct purpose, different from the other. The Waterworks Act deals, inter alia, with the specific problem of the threat of water pollution in a watershed, an identifiable area of special concern. The Planning Act , albeit later in time than the Waterworks Act , establishes a general regime of planning control covering the whole State. Although the supplementary development plan applicable to the respondents' land recognizes the problem of the threat of pollution to water supplies and therefore raises issues similar to those addressed by the Waterworks Regulations, there is no difficulty in requiring compliance with both legislative schemes. Consent under s. 47(6) removes the prohibition imposed by s. 47(5) but the respondents remain bound by reg 37.2.1. There is nothing surprising about that, given the different purposes of the two statutes and the generality of the Planning Act . The Solicitor-General also drew attention to other circumstances where the imposition of planning controls under the Planning Act provides only one regulatory device among others operating with respect to the conduct of operations upon particular land. He referred to the Meat Hygiene Act 1980 (S.A.), the Liquor Licensing Act 1985 (S.A.) and the Waste Management Act 1987 (S.A.): see also Associated Minerals Consolidated Ltd. v. Wyong Shire Council [1975] A.C. 538.

The two Acts have different purposes and each provides its own exclusive comprehensive code for planning on the one hand and fishing activity on the other hand. Each is capable of being satisfied and its objectives fulfilled except in so far as the provisions of s 104(3) and s 112(4) are in direct conflict. There is clearly a contrariety between those two subsections.

It is apparent from s 220ZW of the FM Act that the draftsperson was mindful of the provisions in s 112(4) of the EP&A Act.

Section 112(4) refers to the prospect that the "activity will detrimentally affect the environment (including critical habitat) or threatened species populations or ecological communities or their habitats" .

Section 220ZW authorises the Director to grant a licence authorising a person to take action that is likely to result in one or more of the following:- (a) harm to a threatened species, population or ecological community; (b) damage to a critical habitat; (c) damage to a habitat or a threatened species population or ecological community.

It is only when granting a licence under Subdivision 1 of Div 6 in Pt 7A of the Act, where s 220ZW appears, that the Director is not a determining authority for the purpose of Pt 5 of the EP&A Act by dint of s 221B(5) of the FM Act.

The Court is satisfied that the Parliament intended that the provisions of Pt 7A of the FM Act would take over the operation of s 112(4) at least so far as it relates to authorising harm to threatened species, populations or ecological communities or their habitat.

Division 4 in Pt 7A of the FM Act creates offences where harm is caused to any fish or marine vegetation of a threatened species population or ecological community. Section 220ZF provides a defence to a prosecution if the act or omission constituting the offence:- (a) was authorised by, and was done or omitted in accordance with, a licence granted under this Part (7A) , a permit under section 37 or an aquaculture permit, or

(b) was essential for the carrying out of: (i) development in accordance with a development consent within the meaning of the Environmental Planning and Assessment Act 1979 , or (ii) an activity, whether by a determining authority or pursuant to an approval of a determining authority within the meaning of Part 5 of that Act, if the determining authority has complied with that Part, or

The authorisation of the act or omission by a commercial fishing licence is not a listed defence. The penalty provisions of the FM Act in relation to harm to threatened species therefore provide for the confirmation that Pt 5 of the EP&A Act is intended to operate consistently with those parts of the FM Act outside Pt 7A.

Even if I am not correct in finding that s 112(4) of the EP&A Act has been repealed by Pt 7A of the FM Act in so far as it relates to the authorisation of harm to threatened species and dealt with by the later Act, I remain convinced that Pt 5 otherwise applies to the determination by the Minister of an application for a commercial fishing licence and that accordingly the Minister is a determining authority as defined in s 110.

Before issuing the commercial fishing licences to Mr Whatson under s 104 of the FM Act in April 1998 and March 1999, the Minister was bound by s 111 of the EP&A Act to examine and take into account to the fullest extent possible all matters affecting or likely to affect the environment by reason of the activity authorised by the licence.

The Minister was also required to consider the effect of the activity on threatened species pursuant to s 111(4) of the EP&A Act. Where the activity of commercial fishing is likely to significantly affect the environment (including critical habitat) or threatened species, populations or ecological communities or their habitats, the Minister, as the determining authority, is obliged to obtain or require that he be furnished with an environmental impact statement and to examine it pursuant to s 112(1). However, if the Minister forms an opinion that the activity will have the detrimental effect on threatened species, populations, communities and habitats referred to in s 112(4), his jurisdiction to approve or disapprove of the activity is lost in favour of the Director under Pt 7A of the FM Act.

If however the Minister's opinion of detrimental effect is on the environment generally, without a detrimental effect on the threatened species, he is bound by s 112(4)(a)(i) to impose conditions of the category referred to in that subparagraph.

Did the Minister fortuitously comply with s 111 of the EP&A Act?

It is conceded that the Minister did not deliberately turn his mind to the requirements of s 111.

The Principal Manager Licensing of New South Wales Fisheries, Paul Francis Murphy, explained the regulatory regime which governs the management and licensing of commercial fishing. He told the Court that due regard is paid to the objects of the FM Act, including:- (1) the promotion of viable commercial fishing and aquaculture industries; (2) to conserve fish stocks and key fish habitats; (3) to conserve threatened species, populations and ecological communities of fish and marine vegetation; and (4) to promote ecologically sustainable development, including the conservation of biological diversity.

Implementation of the scheme of licensing has resulted in virtually all of the commercial fisheries of New South Wales being managed under either a restricted or share management fishery regime.

A number of management strategies have been adopted from time to time in response to research. The management operates at a broad strategic level. Project teams provide the forum for the co-ordination, planning and monitoring. Through this process Mr Murphy says that environmental issues are investigated and then advanced as part of the long term planning process, the ultimate goal being a sustainable fishery. One research project is concentrating on the issue of by-catch and the discarding of under-sized and unwanted fish. Another project is a study of the effects of hauling on seagrass beds.

However he noted that these projects have a statewide focus and are not necessarily confined to a particular estuary or other fishing site nor are they confined to the activities of a particular fisher.

Nowhere in his comprehensive explanation does Mr Murphy identify any connection between fisheries management and taking into account to the fullest extent possible all matters likely to affect the environment by reason of commercial fishing activity, as envisaged by s 111 of the EP&A Act.

On the basis of Mr Murphy's evidence alone it is starkly clear that the Minister did not undertake any assessment for the purpose of s 111 and, I agree, therefore necessarily did not make any decision for the purpose of s 112 of the EP&A Act.

There is evidence from experts retained by the applicant that there is a real prospect of physical damage to the seagrass beds which are the subject of hauling activities with consequential adverse effect on organisms occurring within those beds.

It is the opinion of Professor Peter-Gerd Saenger, Professor of Coastal Management in the School of Resource Science and Management at Lismore that "authorised fishing to the extent permitted by the second respondent's commercial fishing licence at the time it was renewed even considering the Manning River near Taree alone meant that there was a real chance or probability that a significant detrimental impact on the marine life of the River could thereby be caused" .

He identified some of the means by which this could occur as follows:- (a) when netting occurs, the removal of a significant portion of the seagrass beds within the path of the net; (b) the reduction of the food source and of nursery areas in the areas of juvenile fish species to an extent which prevents growth to maturity of a significant number of species and the density of particular species declines or disappears over time, from the particular area fished.

In the opinion of Peter Parker, Director of Parker Environmental Consultants Pty Ltd, it is possible that Mr Whatson's fishing activities could have a significant effect on one or more of the threatened species identified by Mr Parker in the environs of the Manning River and their habitats.

The Court's finding that the Minister failed to comply with the obligations imposed by s 111 of the EP&A Act is sufficient for the applicant to establish its case that the commercial fishing licence granted to the second respondent is invalid.

Mr Parker says that the authorised fishing to the extent permitted by the second respondent's licence at the time that it was renewed meant that there was a real chance or probability that a significant detrimental impact on the marine life of the Manning River would thereby be caused.

On the other hand Mr Murphy told the Court that fishing activities in restricted and share management fisheries are directly controlled by a combination of any of the following:- _ limiting the number of endorsements (s 67, s 113, cl 212Y) _ limiting the number and type of vessels (s 8 and criteria, eg cl 178) _ limiting the total catch of any species over any period (s 8, 28, 57) _ prohibiting certain size classes of any species from being taken (s 15) _ closing areas to certain types of fishing (species and methods) for any period (s 8) _ regulating the types of fishing methods and gear permitted (s 24) _ other controls outlined in fishery specific management plans (s 57)

Some of the activities referred to by Mr Parker are:- (a) The removal of marine organisms as a result of netting; (b) The removal from the Manning River estuary of the fish so caught for sale including those killed as by-catch; (c) The removal of juvenile fish and prawns. The result of this activity is that the number of species and/or the density of particular species in the estuary will decline over time.

Professor Saenger opined that it is possible that a significant reduction in estuarine biotic diversity and biomass will occur as a result of:- (1) The reduction in recruitment, which is a direct consequence of the prawn hauling activities; and (2) The by-catch sorting technique which induces high mortality in seagrass associated organisms.

If the evidence remained as it is, then it would be open for the Court to determine that the Minister is required to obtain an environmental impact statement before granting a commercial fishing licence. The Court is not prepared to make that finding in these proceedings because the evidence is restricted to the activities attributed to Mr Whatson within the Manning River Estuary around Taree without regard to the whole of the circumstances otherwise authorised under the licence. Furthermore, it has not been established sufficiently for the Court to be satisfied on the balance of probabilities that the observations relied upon by the applicant's experts can necessarily be attributed to Mr Whatson.

Whether or not an environmental impact statement is ultimately required is a matter to be determined by the Minister after the required examination and consideration has taken place pursuant to s 111(1) and (4).

There is no question that novel and complex questions of law were involved in the proceedings.

The finding that Mr Whatson's commercial fishing licence was granted unlawfully in breach of Pt 5 of the EP&A Act will have a serious impact on his livelihood and could also have serious implications for all other licensed commercial fishers in New South Wales.

It is not to the point that there are potentially immense difficulties in complying with Pt 5 except to the extent that the Court might suspend the effect of any orders for a reasonable time.

The first respondent also points to the applicant's delay in bringing the proceedings where the current commercial fishing licensing regime has been in operation for almost five years. The applicant is not dilatory in the context of seeking to enforce a personal right and in any event the challenge extends to the latest renewal of the second respondent's licence.

The applicant is seeking the enforcement of a public duty imposed by the EP&A Act ( Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335).

It is appropriate that the Court make declarations and orders to reflect the above findings but to allow a period of six months to allow the Minister or Mr Whatson to take such remedial action as they deem necessary or expedient.

It is agreed by all parties that costs should follow the event except in relation to Mr Whatson against whom it is accepted no order should be made irrespective of the outcome.

The formal orders of the Court are:- 1. A declaration that the determination of the application for a commercial fishing licence made to the Minister by the second respondent Chris Whatson by granting an approval and the subsequent renewal thereof was unlawful in breach of Part 5 of the Environmental Planning and Assessment Act 1979.

2. That the second respondent, by himself, his servants and agents, be restrained from taking fish for sale from any waters to which the Fisheries Management Act applies without a valid commercial fishing licence authorising the same.

3. Until further order the operation of Order 2 is suspended for six months.

4. That the first respondent pay the applicant's costs of the proceedings.

5. No order as to costs in respect of the second respondent.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.

Was an environmental impact statement required?

81. There is evidence from experts retained by the applicant that there is a real prospect of physical damage to the seagrass beds which are the subject of hauling activities with consequential adverse effect on organisms occurring within those beds.

82. It is the opinion of Professor Peter-Gerd Saenger, Professor of Coastal Management in the School of Resource Science and Management at Lismore that "authorised fishing to the extent permitted by the second respondent's commercial fishing licence at the time it was renewed even considering the Manning River near Taree alone meant that there was a real chance or probability that a significant detrimental impact on the marine life of the River could thereby be caused".

83. He identified some of the means by which this could occur as follows:-

(a) when netting occurs, the removal of a significant portion of the seagrass beds within the path of the net;

(b) the reduction of the food source and of nursery areas in the areas of juvenile fish species to an extent which prevents growth to maturity of a significant number of species and the density of particular species declines or disappears over time, from the particular area fished.

84. In the opinion of Peter Parker, Director of Parker Environmental Consultants Pty Ltd, it is possible that Mr Whatson's fishing activities could have a significant effect on one or more of the threatened species identified by Mr Parker in the environs of the Manning River and their habitats.

85. The Court's finding that the Minister failed to comply with the obligations imposed by s 111 of the EP&A Act is sufficient for the applicant to establish its case that the commercial fishing licence granted to the second respondent is invalid.

86. Mr Parker says that the authorised fishing to the extent permitted by the second respondent's licence at the time that it was renewed meant that there was a real chance or probability that a significant detrimental impact on the marine life of the Manning River would thereby be caused.

87. On the other hand Mr Murphy told the Court that fishing activities in restricted and share management fisheries are directly controlled by a combination of any of the following:-

_ limiting the number of endorsements (s 67, s 113, cl 212Y)

_ limiting the number and type of vessels (s 8 and criteria, eg cl 178)

_ limiting the total catch of any species over any period (s 8, 28, 57)

_ prohibiting certain size classes of any species from being taken (s 15)

_ closing areas to certain types of fishing (species and methods) for any period (s 8)

_ regulating the types of fishing methods and gear permitted (s 24)

_ other controls outlined in fishery specific management plans (s 57)

88. Some of the activities referred to by Mr Parker are:-

(a) The removal of marine organisms as a result of netting;

(b) The removal from the Manning River estuary of the fish so caught for sale including those killed as by-catch;

(c) The removal of juvenile fish and prawns. The result of this activity is that the number of species and/or the density of particular species in the estuary will decline over time.

89. Professor Saenger opined that it is possible that a significant reduction in estuarine biotic diversity and biomass will occur as a result of:-

(1) The reduction in recruitment, which is a direct consequence of the prawn hauling activities; and

(2) The by-catch sorting technique which induces high mortality in seagrass associated organisms.

90. If the evidence remained as it is, then it would be open for the Court to determine that the Minister is required to obtain an environmental impact statement before granting a commercial fishing licence. The Court is not prepared to make that finding in these proceedings because the evidence is restricted to the activities attributed to Mr Whatson within the Manning River Estuary around Taree without regard to the whole of the circumstances otherwise authorised under the licence. Furthermore, it has not been established sufficiently for the Court to be satisfied on the balance of probabilities that the observations relied upon by the applicant's experts can necessarily be attributed to Mr Whatson.

91. Whether or not an environmental impact statement is ultimately required is a matter to be determined by the Minister after the required examination and consideration has taken place pursuant to s 111(1) and (4).

92. There is no question that novel and complex questions of law were involved in the proceedings.

93. The finding that Mr Whatson's commercial fishing licence was granted unlawfully in breach of Pt 5 of the EP&A Act will have a serious impact on his livelihood and could also have serious implications for all other licensed commercial fishers in New South Wales.

94. It is not to the point that there are potentially immense difficulties in complying with Pt 5 except to the extent that the Court might suspend the effect of any orders for a reasonable time.

95. The first respondent also points to the applicant's delay in bringing the proceedings where the current commercial fishing licensing regime has been in operation for almost five years. The applicant is not dilatory in the context of seeking to enforce a personal right and in any event the challenge extends to the latest renewal of the second respondent's licence.

96. The applicant is seeking the enforcement of a public duty imposed by the EP&A Act (Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335).

97. It is appropriate that the Court make declarations and orders to reflect the above findings but to allow a period of six months to allow the Minister or Mr Whatson to take such remedial action as they deem necessary or expedient.

98. It is agreed by all parties that costs should follow the event except in relation to Mr Whatson against whom it is accepted no order should be made irrespective of the outcome.

1. A declaration that the determination of the application for a commercial fishing licence made to the Minister by the second respondent Chris Whatson by granting an approval and the subsequent renewal thereof was unlawful in breach of Part 5 of the Environmental Planning and Assessment Act 1979.

2. That the second respondent, by himself, his servants and agents, be restrained from taking fish for sale from any waters to which the Fisheries Management Act applies without a valid commercial fishing licence authorising the same.

3. Until further order the operation of Order 2 is suspended for six months.

4. That the first respondent pay the applicant's costs of the proceedings.

5. No order as to costs in respect of the second respondent.