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Hanif v The Ministry for Tourism [2024] TOSC 53; CV 30 of 2024 (2 August 2024)

IN THE SUPREME COURT OF TONGA
CIVIL JURISDICTION
NUKU’ALOFA REGISTRY


CV 30/2024


1ST PLAINTIFF: - SATIMA HANIF
2ND PLAINTIFF: - BELUNGA DIVING LIMITED
3RD PLAINTIFF: - SHANE WALKER
4TH PLAINTIFF: - VAVA'U GAME FISHING CHARTERS LIMITED
5TH PLAINTIFF: - DIANE CLARKE
6TH PLAINTIFF: - TONGAN EXPEDITIONS LTD
7TH PLAINTIFF: - MOHAMMED HANIF
8TH PLAITIFF: - DOLPHIN PACIFIC DIVING LTD
9THPLAINTIFF: - JONES BUSINESS SERVICES LTD
10TH PLAINTIFF: - SOUTH PACIFIC SEA ADVENTUREDS LTD
11TH PLAINTIFF: - WHALE WATCH VAVA'U LTD
12TH PLAINTIFF: - COCOKARA BEACH LTD
13TH PLAINTIFF: - TREASURE ISLAND RESORT LTD
PLAINTIFFS


-v-


[1] THE MINISTRY FOR TOURSIM
[2] THE MINISTER OF TOURSIM


ORDERS MADE BY : COOPER J
DATE OF ORDER : 2 AUGUST 2024


THE COURT ORDERS THAT :

  1. Leave to commence judicial review proceedings is refused.
  2. Likewise, the application for interim injunctive relief.

REASONS


  1. Filed on 5 July 2024 was an ex parte application for leave to commence judicial review proceedings, pursuant to Order 39 Rule 1, et seq, Supreme Court Rules and an application for an ex parte injunctive order.
  2. The following material was filed with the application, the Memorandum and proposed Statement of Claim as well as :
  3. Following an ex parte hearing of 7 July 2024, there was correspondence from Counsel, Mr. Garrett, requesting permission for further filings and submissions. This was granted.
  4. The further material filed 15 July 20924 was:

(Vava’u is currently without almost all internet services. The cable connecting that island to Tongatapu has been severed. That is why Ms. Fakatou swore the affidavit and for the purposes of this ruling, no point is taken with that arrangement.)

  1. Thereafter there were further submissions made on 17 July 2024.

Background

  1. Vava’u is a popular tourist destination, where, during “whale watching season” (the Season), tourists can take boat tours to see Oceania humpback whales (Megaptera novaeangliae) and even to swim with them.
  2. The Season runs from approximately the beginning of July to October. This is the time of year the whales come to the waters of Vava’u to breed. There are therefore also mother-calf pairs present.
  3. Under the Whale Watching and Swimming Act (the Act) and the Whale Watching and Swimming Regulations (the Regulations) licences may be applied for by prospective tour operators to engage in whale watching or swimming with whales activities.
  4. Applications for such licences are made to the Minster of Tourism (the Minister) pursuant to section 4 of the Act, in the prescribed form and manner and may be granted with conditions.
  5. Regulation 5 (4) determines the criteria for grant

5. Application for Licence

(1) An application for a licence shall be made in writing to the Minister in the form prescribed in Schedule 1.

(2) The Minister upon granting an application under sub-regulation (1) shall issue the licence in the form set out in Schedule 3 and may impose such conditions as he considers proper.

(3) The fees payable for an application for a licence are those set out in Schedule 4.

(4) In considering any application for a licence, the Minister shall have regard to the following:

(a) that the commercial services should not be contrary to the purposes and provisions of the Act and these Regulations;

(b) whether the commercial services is likely to have any significant adverse effect on the behavioural patterns of the whales to which the application refers, having regard to, among other things, the number and effect of existing commercial services and the applicant’s proposed plan of operation;

(c) that it should be in the interest of the conservation, management, or protection of the whales that a licence be issued;

(d) whether the applicant, and such of the applicant’s staff who may come into contact with whales, have sufficient experience with whales;

(e) whether the applicant, and such of the applicant’s staff who may come into contact with whales have sufficient knowledge of the local area and of sea and weather conditions;

(f) whether the applicant and such of the applicant’s staff who may come into contact with whales have convictions for offences involving mistreatment of animals;

(g) whether the applicant and such of the applicant’s staff who may come into contact with whales have the required skills and knowledge to provide valued services to customers; and

(h) that the commercial services should not be contrary to the provisions of relevant legislation which may include but is not limited the Business Licence Act, Foreign Investment Act and Shipping Act.

(5) An application for a licence shall be accompanied by the following required documentation:

(a) a third party public liability insurance policy and a copy of the insurance policy;

(b) approved seaworthiness certification from the Marine Division of the Ministry responsible for transport for all vessels used for commercial services;

(c) valid Master’s certificate; and

(d) Certificate of a Coasting Trading licence issued by the Marine Division of the Ministry responsible for transport.

(6) The Minister shall issue, where appropriate, to every service provider a certificate identifying each vessel operating under a licence and such certificate shall be affixed at all times to the vessel.

(7) The Minister may, by notice published in the gazette, limit the number of licences, and the number of vessels certified under each licence, granted and issued for a specified period of time where the Minister believes on reasonable grounds that:

(a) it is necessary for the management, protection or conservation of whales; and

(b) there is a need to sustain the economic viability of the whale watching and whale swimming industry in the Kingdom.

  1. A licence shall be valid for 3 years from grant and maybe renewed upon application under the Regulation 6.
  2. Mr. Coldrick deposed that in 2006 only 13 licences were issued for Vava’u, in 2020 the number was limited to 20. Though, by the end of the season that had risen to 24, after a successful challenge of cancelled licences upon judicial review.
  3. By the end of July 2023, 26 licences were in force, which remains the position to this day.
  4. Annexed to Mr. Coldrick’s affidavit are, inter alia
  5. That letter, annex “I”, states

I write in response to your letter dated 27th May 2024 regarding the above. In yourletter, you mentioned that your clients were concerned that more whale-watching licences may be issued before the 2024 season. In addition, your clients believe that issuing additional licences may be disastrous for the sustainability of the industry.

You may be aware that there is no provision under the Act and the Regulations to limit the number of licences the Minister may issue. Under regulation 5(7) the Minister has the discretion whether to limit the number of licences to be issued in a specific period by way of a notice published in the Gazette,"if he ,believes on reasonable grounds that":

a) It is necessary for the management, protection or conservation of whales; and

b) There is a need to sustain the economic viability of the whale-watching and whale-swimming industry in the Kingdom

You had referred to an affidavit by the former CEO Mr. Sione Moala-Mafi in which he refers to "scientific advice" and several reports provided to the Ministry dating as far back as 2006 in clause 6 of his affidavit.

Again, I would like to draw your attention to regulations 5(7), that if the Minister believes on reasonable grounds that the number of licences should be limited, then he can publish a notice. We are aware of the latest reports and mentioned in the former CEO's affidavit which was 2017 and 2019 respectively.

The Ministry would also like to state clearly that under regulations 8(3) the Minister may temporarily suspend some or all licences issued under the Act and these Regulations for such period as he deems necessary due to:

a) A major disturbance to the whale population in the Kingdom of Tonga which has been identified;

b) The poor health of any whale population;

c) The serious injury or death of a whale watcher, swimmer or whale or a serious accident involving a vessel certified under licence; or

d) The failure of a licence holder to comply with the terms of the licence, the Act or these Regulations.

Therefore, if the Ministry were to issue additional licences this year, it is entirely a matter for the "Minister to consider in his discretion under regulation 5(7).

In addition, the Ministry will consider procuring an independent expert study that is separate from that of Mr Moala-Mafi. Once the study is completed and reported, the Minister will consider the advice and data available from this study for future decision-making processes

  1. The letter, Annex “D” from Dr. Orams, refers to the studies that were undertaken in 2016 and 2017 in Vava’u, including the report, annex “C”
  2. The affidavit of Naomi Fakatou was filed after the first ex parte hearing 8 July 2024.
  3. It has attached to it :

With that document is a copy of the gazetted Order of 25 February 2020, stating that the number of licences in Vav’'u would be limited to 20, along side the correspondence the Ministry sent at the time to a number of those operators in Vava’u applying to renew their licences.

“...for the management, protection and conservation of the whales...”

“...one of the contributing factors to the disturbance to marine mammals and the change in their behaviour is directly related to the number of vessels at sea.”

“...whale-watch tourism must be considered a persistent, chronic, stressor that can result in biological meaningful changes in behaviour, survival and reproductive success.”

Statement of Claim

  1. The Statement of Claim pleads three grounds.
    1. Error in law

The purpose of the Act and Regulations is to provide a framework for the management and licensing of commercial services in connection with whale watching and swimming to protect whales. A decision to issue more licences would be outside the purposes and object of the Act.

  1. Failure to consider relevant considerations

The Minister is required to have regard to

  1. The statutory purpose of the Act and Regulations
  2. The management, protection and conservation of whales in the area affected by the decision.
  3. Sustainability, management and economic viability of whale watching and swimming industry
  4. The relevant scientific information.

Thereafter it is stated that the Letter makes clear the Minister intends to issue additional licences without regard to the four points set out above and issuing further licences would be flawed and invalid

  1. Unreasonableness

In the light of the current scientific information it would be unreasonable to issue further licences.

  1. The claim for interim relief was to stop any more licences being granted until this application was decided.

Legal Principles

  1. The Ministry is a public body, the Public Service Act, Schedule 1 confirms it is a Ministry in the public service.
  2. The Plaintiffs argue that the letter, dated 7 June 2024, is the trigger for these claims.
  3. At this stage the Plaintiffs must demonstrate they have an arguable case.

Discussion

  1. A licence for whale watching or swimming, granted under section 4 or 5 of the Act, is subject to the conditions contained therein.
  2. A copy of the prescribed form for a licence is contained in the Regulations at Schedule 3 and it contains the section “Conditions of licence”.
  3. The Letter the Minister sent, stated that issuing of a licence is at the discretion of the Minister under regulation 5 (7).
  4. In fact regulation 5 (4) (a) – (h) sets out the factors that are to determine how the Minister must exercise his discretion in granting a licence.
  5. Regulation 5 (7) determines the criteria for limiting the number of licences.
  6. The Letter makes repeated references to regulation 5 as being key to the exercise of the Minster’s discretion. It is not argued before me that the Minster erred in law by referring to regulation 5 (7) instead of 5 (4) in considering how to exercise his discretion to grant licences.
  7. It appears to me to be just a simple error. It must be plain to the Minster what part of regulation 5 determines the grant of the licence and I take no point with this and regard it as a typographical error.
  8. At this stage, it is impossible to know if the Minister granted more licences, what conditions he would put on them. He clearly stated the need to consider the impact on whales in managing the grant of licences.
  9. For this reason alone it appears to me premature to grant the application for leave for judicial review and the interim injunctions.
  10. Moving on, what the claims each essentially revolve around is the submission that the scientific evidence is clear; the watching and swimming activities harm the whales.
  11. Yet, the Dr Fiori report stated in its conclusion

“Whether the short-term behavioural responses observed in Vava’u humpback whales could cause long-term detrimental effect at the population level is unknown and needs further investigation.”

  1. That report, published in 2019, relates to the study conducted in 2016 and 2017.
  2. That report noted some instances of poor compliance with the regulations (page 10/21), for example 10.4% of encounters lasted more than the permitted 1.5 hours. Another example was queued vessels within 300 m of a whale group (38.4 % breach of compliance). Whereas the regulations require a 1.5 hour “resting time”.
  3. In other words, that report’s findings are, to an extent, predicated on practices that were observed at that time; 6-7 years ago.
  4. There is no material before me to come to a conclusion as to how the operators are managed at the moment, or, indeed, whether any current holders of licences are non-compliant with the regulations.
  5. The affidavits do not shed any light on current practices.
  6. I also note that the complaint about the escalation in licences numbers includes the fact of the increase from 20 licences in 2020 to currently there being 26 (Mr. Coldrick’s affidavit, paragraph 19 to 24).
  7. Yet three of the Plaintiffs are amongst those that benefitted in that increase in grant; Diane Clarke t/a Vakavave, Tongan Expeditions Limited and Jones Business Services Limited.

Conclusion

  1. Each of the three pleaded claims is predicated on an assertion that the whales are being harmed by the interaction with tourists in boats licensed to watch them and swimming with them.
  2. The claims are focused on the Minister allegedly, not properly assessing the scientific evidence, when he declines to state he will ‘cap’ the numbers of licences.
  3. At this time it is not known if any new licences were to be granted what conditions the Minister would impose on them.
  4. Nor have I before me any information concerning the current level of compliance with the regulations on the part of the current licence holders. That might be very relevant.
  5. I note that Dr. Firi’s report, page 15/21 states

Research in other areas has shown that whales can become habituated towards a vessel that has been operating in close proximity for years.

  1. “Habituate” means to make or become accustomed. That suggests that the whales may become used to some vessels over time and in turn, may suggest that more established tours will have a less detrimental effect. There is nothing in the material for me to assess if that is the case in Vava’u. Yet it is a contention in the scientific material the Plaintiffs rely upon.
  2. It tends to underline the need for more contemporary studies than have been placed before me.
  3. There appears to be no up-to-date studies on the whales in Vava’u which demonstrates there is a detrimental effect of the whale-watching industry on the “...protection, conservation and management...” of the humpback whales. The report by Dr. Fiori makes it plain in his conclusion, the long term detrimental effect of these activities was not known.
  4. If these interactions are said to be harmful (see the letter from Professor Rochelle Constantine[1]), how is a court meant to determine the reasonableness of Ministerial decision making; when assessing to what extent licence holders ought to be allowed to cause such detrimental effect, but others not and where to draw the line ? Dr Constantine appears to say these activities are harmful per se. Since the claims relate to the allegation that the Minister has not assessed the scientific evidence correctly in declining to state he will limit the number of licences, intrinsic to this is that question.
  5. This is seemingly further complicated by the fact the submissions appear to suggest there are already too many licences.
  6. For all these reasons I conclude

so that I am unable to assess whether there are reasonable prospects of success under any head of claim.

  1. I therefore refuse the application for leave for judicial review and the interim relief.
SUPREME COURT
2 AUGUST 2024
NUKU’ALOFA
COOPER J

[1] Affidavit of Naomi Fakatou, annex “E”

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