Puffin Fishing CC and Another v Minister of Forestry Fisheries and the Environment and Others

The applicants, Puffin Fishing CC ('Puffin') and River Queen Trading 499 CC ('River Queen'), are close corporations operating in the tuna pole fishing industry. Both applied for commercial tuna pole fishing rights for 1 March 2022 to 28 February 2037 under s 18 of the Marine Living Resources Act (MLRA), as Category A applicants. Puffin's application was refused by the Delegated Authority (DA) because it scored below the available effort, and the DA noted a brother-sister relationship with Hotline Fishing CC, a higher-scoring Category C applicant. On internal appeal, the Minister corrected Puffin's score but dismissed the appeal on the basis of the brother-sister relationship between Puffin and Hotline under clause 8.6.2 of the General Policy. River Queen's application was excluded for failing to effectively utilise its tuna pole-line right, as it had not harvested the required minimum of 25 tons annually or a cumulative 175 tons from 2014 to 2020. Its internal appeal was dismissed by the Minister, who found River Queen had not provided exceptional and compelling circumstances to justify exemption from clause 6.1(d) of the Sector Policy.

• Whether the Minister's dismissal of Puffin's appeal based on the brother-sister relationship criterion was lawful under s 6(2)(e)(i) of PAJA.
• Whether the DA and Minister failed to take relevant considerations into account in excluding River Queen for non-utilisation of its fishing right under clause 6.1(d) of the Sector Policy.
• Whether the DA and Minister's decisions regarding River Queen were rationally connected to the information before them.
• Whether there was procedural unfairness or impermissible delegation in the decision-making process.
• Whether substitution or remittal was appropriate relief in the event of a successful review.

1. The Minister's decision refusing Puffin a fishing right based on the brother-sister relationship was reviewed and set aside. 2. Puffin was granted a commercial tuna pole fishing right for 1 March 2022 to 28 February 2037, with terms to be determined by the Minister under s 13 of the MLRA. 3. The remainder of the application (River Queen's review) was dismissed. 4. Each party to pay their own costs.

1. Under clause 8.6.2 of the General Policy on the Allocation of Fishing Rights, a brother-sister relationship between entities requires both ownership and control by the same shareholders/members. A cumulative 50% members' interest does not equate to control, as it at best confers a right to veto a decision resulting in deadlock. A decision based on a finding of a brother-sister relationship where this dual requirement is not met is taken for a reason not authorised by the empowering provision and is reviewable under s 6(2)(e)(i) of PAJA. 2. Courts must accord due deference to administrative decisions involving specialised expertise and policy-laden considerations, and will only interfere where the decision does not reasonably result in the achievement of the policy goal, is not reasonably supported on the facts, or is not reasonable in light of the reasons given.

The court observed that the reference to 'shareholders' in clause 8.6.2 of the General Policy may reasonably be construed to also mean 'members' in the context of close corporations. It also noted it is impermissible to construct an ex post facto rationalisation for an administrative decision, as the second respondent attempted by raising shared addresses as an additional reason for the brother-sister finding.

This case clarifies the interpretation of the 'brother-sister' relationship criterion in the General Policy on the Allocation of Fishing Rights, establishing that cumulative 50% ownership does not constitute 'control' for purposes of that criterion. It also reaffirms the Bato Star principle of judicial deference in fisheries allocation decisions and underscores the high threshold for applicants to prove exceptional and compelling circumstances to escape exclusionary criteria under sector-specific fishing policies.