Bluefin Seafoods Pty Ltd v Chief Executive, Department of Employment, Economic Development and Innovation [2011] QCAT 323

CITATION: Bluefin Seafoods Pty Ltd v Chief Executive, Department of Employment, Economic Development and Innovation [2011] QCAT 323 PARTIES: Bluefin Seafoods Pty Ltd V Chief Executive, Department of Employment, Economic Development and Innovation APPLICATION NUMBER: FHR067-09 MATTER TYPE: General administrative review matters HEARING DATE: 16 November 2010 HEARD AT: Brisbane DECISION OF: Mr J Allen Mr P Wulf Ms S Bothmann DELIVERED ON: 14 July 2011 DELIVERED AT: Brisbane ORDERS MADE: The decision of the respondent is confirmed CATCHWORDS: Review of decision of Chief Executive to refuse Resource Allocation Authority for sea ranching of sea cucumbers, Fisheries Act 1994, sections 54- 62 APPEARANCES and REPRESENTATION (if any): APPLICANT : Bluefin Seafoods Pty Ltd represented by Mr Ross Meaclem RESPONDENT: Chief Executive, Department of Employment, Economic Development and Innovation represented by Mr R McLeod of Counsel instructed by Ms S Payne -- 1 of 17 -- REASONS FOR DECISION INTRODUCION [1] Bluefin Seafood Pty Ltd made an application to the Chief Executive of the Department of Employment, Economic Development and Innovation on 16 May 2007 for a Resource Allocation Authority (RAA) to use an area of 51.92 sq kms in the Hervey Bay region for sea ranching of sea cucumbers (Holothuria scabra) also known as beche de mer and sandfish. Bluefin already held RAAs for two other areas, one at Urangan and the other on Fraser Island at Moon Point and had approval for an aquaculture hatchery at Urangan. The hatchery’s town planning approval lapsed during the course of the application though a new approval for a larger hatchery area was obtained on 23 March 2010. [2] The application was refused by the Chief Executive on 13 July 2009 and Bluefin appealed the decision to the former Fisheries Tribunal. The appeal was transferred to the Tribunal upon its commencement. The reasons for refusal of the application were stated as follows in the letter of 13 July 2009: Issue of a RAA for the deep water ranching of beche de mer, as presented with your proposal, is considered contrary to the best management, use, development and protection of fisheries resources. The proposed site is within an area closed to commercial beche de mer fishing as part of the management of the states fisheries resource. It has not been demonstrated that the proposed aquaculture activities are in keeping with the management of the wild beche de mer stock or that there is no capacity for impact to that management of the wild stock. THE LEGISLATION [3] As this application was originally made to the former Fisheries Tribunal in accordance with section 271 of the Queensland Civil and Administrative Tribunal Act 2009 the Tribunal has, and only has, the functions that the former entity had in relation to the matter under the former act and the Tribunal can, and can only, make a decision the former entity could have made in relation to the matter under the former act. Section 196 of the Fisheries Act 1994 (prior to its amendment) dealt with the grounds of appeal in respect of decisions made under that Act and section 198 sets out the powers of the former Fisheries Tribunal. Section 196(2) of the Fisheries Act 1994 provides that amongst others a decision of the Chief Executive about policy can’t be appealed against. The grounds of appeal under section 196 are: (a) The decision of the Chief Executive was contrary to this Act; (b) The decision of the Chief Executive was manifestly unfair; (c) The decision of the Chief Executive will cause severe personal hardship to the appellant Bluefin raised grounds (b) and (c) in its notice of appeal. -- 2 of 17 -- The powers exercisable by the Tribunal in accordance with the former section 199 of the Fisheries Act 1994 were to a. confirm the decision appealed against; b. set the decision aside and substitute another decision; or c. set the decision aside and return the matter to the Chief Executive with directions the tribunal considers appropriate. Section 199(2) states that in substituting another decision, the Tribunal has the same power as the Chief Executive. This implies that the Tribunal when exercising its powers under the Fisheries Act 1994 is to do so by way of a fresh hearing of the matter as it would if exercising power under section 20 of the Queensland Civil and Administrative Act 2009. [4] A RAA enables an authority holder to use Queensland waters or unallocated tidal land for aquaculture purposes. Aquaculture is defined in the dictionary of the Act as the cultivation of live fisheries resources for sale other than in circumstances prescribed under a regulation. An authority holder may in accordance with regulation 216 of the Fisheries Regulations 2008 interfere with a fish habitat in Queensland waters or on unallocated tidal land in the way mentioned in the authority. The release of aquaculture fisheries resources into Queensland waters must be done in accordance with a permit or as authorised under the Planning Act, which is now the Sustainable Planning Act 2009 (SP Act), see regulation 634 of the Fisheries Regulations 2008. A development application for aquaculture requires that a RAA must be in existence in accordance with section 76B of the Act. A RAA does not give the holder the right to take any wild fish as would be the case if the application was for a fishery symbol. A B1 fishery symbol allows for the harvesting of wild sea cucumbers. [5] An application for a RAA is determined under sections 54 to 62 of the Act. The Chief Executive may issue the authority or refuse to issue it under section 55 of the Act. An authority may be issued with conditions in accordance with section 61 of the Act. In accordance with section 59 of the Act, the Chief Executive may refuse to issue an authority if the Chief Executive is satisfied the refusal is necessary for the best management, use, development or protection of fisheries resources or fish habitats. The Chief Executive must in accordance with section 60A of the Act have regard to the impact of the development mentioned in the authority on each of the following: a) Coastal management under the Coastal Protection and Management Act 1995; b) The protection of Queensland waters as required under the Environmental Protection Act 1994; c) The management of marine parks under the Marine Parks Act 1982. HISTORY OF SEA CUCUMBER IN HERVEY BAY [6] The history of the sea cucumber fishery in Hervey Bay is an important consideration in this application. Bluefin was the holder of a B1 fishery symbol, and harvested sea cucumber in Hervey Bay until the closure of -- 3 of 17 -- the fishery by the then Department of Fisheries in 2001, due to depletion of the stock. Bluefin then with funding from both the Federal and State governments set up its hatchery site at Urangan. The hatchlings from this site once they reached juvenile stage were seeded to the resource allocation areas held by Bluefin, AA815 at Moon Point, Fraser Island and AA820 at Urangan, Hervey Bay. Bluefin claims that flooding from the Mary River in 2005 destroyed seagrass beds which are important to the juveniles. Bluefin claims that as a result the juveniles moved into deeper waters and most probably those waters are the ones the subject of the current application. IDENTIFICATION OF WILD AND HATCHERY STOCK [7] The area which Bluefin has requested that it be allocated is acknowledged by it as an area where wild sea cucumbers are found naturally. In its application Bluefin stated that the only way possible to separate wild and aquaculture stocks was for barriers/structures to be put in place which they did not wish to do. That marking branding methods were very much in the research phase. Having regard to the fact that the commercial catch for sea cucumber is set at zero in Hervey Bay and that even if it was not set at zero Bluefin does not have a B1 authority to harvest sea cucumber this would present a major obstacle to the granting of the application. [8] In the period since the application was made there have been advances in science and a method of identifying wild and aquacultured stock has been outlined in a report by Associate Professor Wayne Knibb, genetics and aquaculture at Sunshine Coast University1. He states in the report that From precedent from other species, USC scientists have reached a unanimous opinion that it will be technically possible to identify whether individual Holothuria scabra from Hervey bay are from hatchery or wild stock. Both animals that have already been released, and those that may be released in the future, can be identified. The cost of identification increases with the accuracy required. [9] The report provides that the parties agree on an error rate for stock identification with suggestions of either 1 in 10, so that of 100 animals tested, less than 10 are misidentified as to their origin, this being hatchery or wild. Alternatively, he suggests that that the error rate could be 1 in 100; this means of 100 animals tested, less than 1 is misidentified as to their origin, hatchery or wild. The cost of DNA identification of a given animal, not including development costs, will be about $20 per animal (for a confidence of 90%; the cost will be greater if a higher confidence is required). The analysis would take at least one week from sampling until identification. Consequently, these techniques will not permit real time identification of every single animal in the field. [10] The report then suggests methods of deploying the technology as follows: 1 Exhibit 3 -- 4 of 17 -- That in a given defined site nominated for collection, 100 animals are randomly sampled. The 100 animals are genotyped (tested for their alleles at sufficient microsattelite loci to achieve the required certainty set out above). That a percent of the animals in the defined area which does not exceed that predicted by the genotyping to be of hatchery origin be available for harvesting. Or That in a given defined site nominated for collection, 100 animals are randomly sampled. The 100 animals are genotyped (tested for their alleles at sufficient microsattelite loci to achieve the required certainty set out above). That a percent of the animals in the defined area to be harvested is to be inserted by agreement, and will be less than the percent of animals predicted by genotyping to be of hatchery descent. Or That in a given defined site nominated for collection, 100 animals are randomly sampled. The 100 animals are genotyped (tested for their alleles at sufficient microsattelite loci to achieve the required certainty set out above). That a percent of the animals in the defined area to be harvested is less that the 95% confidence interval for the frequency of the predicted hatchery genotype. [11] There are two tagging strategies set out in the report, one of Mitochondrial sequences and the other Microsattelite markers. There are said to be advantages for both methods with the first option being attractive because it requires no “work up” or development costs as the tools are already available with an acknowledgment that it may not have the level of certainty required. The second method is said to be on balance, much more powerful and accurate than those methods outlined in strategy 1 but with the disadvantage of requiring a development/work up phase. The development costs will depend on whether existing microsattelite markers from a different species can be used, which would mean costs would be a few thousand and with operational costs equivalent to those for strategy 1 of $20 per sample. If they need to generate their own microsattelite markers then the cost of doing so would be in the order of $10,000. [12] It is noted in the report that each time H. scabra were released by Bluefin into Hervey Bay, 60 or more animals were sent to DEEDI veterinary laboratories (supervised by Dr Robert Chong), were fixed in formalin and embedded in paraffin wax. One of USC scientists (Knibb) has previously published, along with many others, that DNA suitable for PCR can be isolated from such histological preparation. Accordingly, we are confident that we can genotype or haplotype a large number of siblings of the animals released in Hervey Bay (samples can be obtained from the living animals by non-destructive methods). By comparing the two groups of animals along with 100 certain wild animals, we can predict with various levels of confidence (to be agreed above) the origin of the living animals. [13] In a similar way using microsattelite markers it is stated we will use commercially available software to identify whether animals from the wild are siblings of those now in paraffin blocks. This would potentially enable -- 5 of 17 -- Bluefin to show that at least a portion of the wild stock currently located in the area they are requesting they be allocated are in fact their hatchlings. [14] In his evidence at the hearing Associate Professor Knibb confirmed that the different ways of monitoring involve a trade-off between accuracy and cost. That with 100 animals from a given area you would get a fairly sensitive accurate estimate of population. That it could be done from a non-lethal biopsy and could be done within a week. The report was reviewed by 4 scientists and that it was not theory. He works with major partners such as the Commonwealth Government in tuna prawns and pearls. That DNA technology is superior to physical chemical marking and the power of the technology increases every day. [15] When queried about the validity and accuracy of the technology Associate Professor Knibb stated no reputable scientist would say there has been a problem, DNA is the material, all do the same thing, all DNA perform the same way. He stated that he would require a sample of the wild genotype so that we can reconstruct parents, and consider genotype frequencies as each chromosome has two copies and that the hatchery would be expected to keep biopsies of all broodstock. Associate Professor Knibb was also questioned on whether there was difficulty in differentiating the broodstock from the wild population when it was originally from the wild population that it was sourced. He stated that they do that day to day with king fish. He also stated in regard to genetic diversity that if managed appropriately there would be no difference in genetic diversity between hatchery and wild stock. BLUEFINS EVIDENCE [16] Mr Meaclem in his evidence at the hearing stated that he had been involved with sea cucumbers for 20 years and had started the wild fishing society. That when the catch got less he set up the hatchery with federal funding and in the first few years went to India and got a husband and wife scientific team to work in the hatchery. He also provided details of the process for the release of sea cucumber from the hatchery to the RAA sites. He confirmed that the current development approval from the Fraser Council was for a hatchery with up to 550m2 of tank space and provided a copy of the development approval to the Tribunal2. He stated that they can’t mechanically harvest at the new site and they want a sustainable fishery. He further stated that the prices for sea cucumber have gone up 7 times and they don’t need a lot of fish. [17] Mr Meaclem added that there will be no commercial harvesting and the areas they have applied for are very protected areas off the main current with sea grass returning. It would take 12 months before the fish were up to harvest size and that you get the adult fish in open waters. The new area has gutters (depressions in the substrate) where the sea cucumbers live, and the trawler man have said this is where the sea cucumbers are. The current RAAs held by Bluefin are nurseries and once they get to a certain size the sea cucumbers move to the gutters. To enable the release 2 Exhibit 4 -- 6 of 17 -- of the sea cucumbers to the new site they would be kept in the tanks at the hatchery longer. Bluefin is happy for a monitoring program to be put in place to ensure that they harvest their own stock and not the wild stock. Bluefin has invested an amount of $2,000,000 and is asking for the same treatment as other companies. He needs stability to run his business and he has had to put off staff. [18] When queried about the likelihood of sea cucumber moving from Moon Point to the new site. Mr Meaclem said this is the only adult area in the bay and there are no colonists between Moon Point and the deep water and it was a reasonable assumption that the sea cucumbers at the new site were from Moon Point. That he has been able to monitor the sea cucumber population with Bluefin’s trawler by checking bi catch and using the echo sounder to observe the gutters. He stated that the new site is a good historical aggregate site for sea cucumbers and that there are no other suitable areas in Hervey Bay. This is the only area for mature sea cucumbers. Other areas were not commercial. In terms of sustainability he stated that there has been a great increase in stock since the flood and part of this was his juveniles. [19] In the material which accompanied its application for the RAA Bluefin stated that Advantages are3: 1. we already have a permit to harvest broodstock in this area and are fully aware of the sustainability of this area for sea cucumber restocking. 2. the sea weed (sargassum sp.) and few other marine plant are been observed during our frequent dives (for breeders) and that forms a good habitat, plus the few sites within the zone have a very fine type of sand & mud bottom very rich in organic & nutrient material-that is essential for larger juveniles 3. the deeper water area provides a stable habitat with available marine plants throughout the year (unlike shallow sites) are not subject to flooding, little salinity fluctuations and a source of good fine grade sand on the bottom which is very rich in nutrients and organic matter. [20] In regard to the impact of issuing the RAA Bluefin advised that sea cucumber density (sandfish) in the RAA area is estimated at 2-3 units per 100 sq metres as sea cucumbers are much larger in size 550-600 gm/pc wet weight.4 Although this can vary considerably as open exposed flats are not as dense as population in small gutters and trenches. Silt/sand is much finer in these parts and therefore a much better food source allowing greater concentrations-also best sites for direct seeding of the baby juvenile sandfish (better food and less current in these trenches)- the area is mostly populated with starfish which always seem to co-exist with sandfish spp.same habitat due to mud/sand type. The area is not a recognised prawn or scallop area so no competition from either of these 3 Statement of Reasons page 4 4 SOR page 7 -- 7 of 17 -- items, or from fisheries. Impact of placing additional aqua produced Beche-de-mer is negligible due to low populations of crabs, prawn and scallop numbers in this area-their only real competitors for space. The habitat in the area is favourable to echinoderms only (starfish and sandfish) Simply due to terrain bottom quality of the sand/mud and the position of the site in the quieter water current areas of the bay-strong currents favour other commercial take species-sandfish prefer lower tidal movement areas. Our placement of juvenile sandfish currently in our shallow water sites invariably are finding their way to the deep water site naturally. A scientific paper was provided which was said to support the movement of sea cucumber into deeper water as they near maturity5. [21] Bluefin included with its application the details required under the then Integrated Planning Act 1997 and now the SP Act.6 [22] Bluefin were sent a draft copy of the Chief Executive’s decision on 29 April 2009 and given the opportunity to make further submissions in support of the application which it did so by letter dated 11 May 2009.7 In the submissions Bluefin outlined that the performance of its existing shallow water sites had been excellent, with 2.3 million juveniles seeded, until the flood which had resulted in the stocks moving to deeper water due to the loss of seagrass and low-salinity. That the seagrass had now returned and future juvenile populations will be more stable. The deep water site applied for is the traditional area for adult sea cucumber stock, and are descendant directly form the juveniles area at Moon Point. There are no colonies between the juvenile area and the adult area. That it is impossible to assess mortality while seagrass cover is gone as thy will not stay in shallow water sites if seagrass is non-existent. However due to our trawler sampling evidence is quite clear adult stocks have increased dramatically in the deep water site since our seeding program in the shallow water site. [23] Bluefin stated all they wanted was a controlled and sustainable fishery and that was the very reason they sold their licence to channel the money into our hatchery to support artificial seeding of sea cucumber stocks. That a harvest plan could be prepared each year with the fisheries monitor. Bluefin considered that proximity to the scallop ranching area was beneficial to both scallop and sea cucumber producers. As there is no containment there is often an overflow effect and Queensland Scallops had agreed to allow them access to dive their existing site, with a permit issue and we would give their trawlers overlap access to our proposed area as long as they kept away from the gutter. [24] Bluefin submitted that any potential re-opening of the closed Wild Fishery would be negligible as there were two main operators whose main interests ere in North Queensland. They would have no problems allowing them access except to our designated deep water area which they would be farming. 5 SOR page 14 6 SOR page 10 7 SOR page 41 -- 8 of 17 -- [25] Mr Frederick Laurence, a commercial fisher was called as a witness by Bluefin to give evidence from his knowledge of sea cucumber fishing in Hervey Bay in particular the movements of sea cucumber around the bay. Mr Laurence stated that he had been a commercial fisher since 1979 and had fished sea cucumbers on and off since 1995 mostly in Hervey Bay. That the population of sea cucumbers had highs and lows in Hervey Bay and they come and go depending on coast floods and drought. That when it floods a lot of water comes out of the Mary River and that kills the seagrass, young sea cucumbers and shell fish. There also may be chemicals in the flood waters which kill them. He has observed that there is rarely an adult in shallow water and rarely a juvenile in deep water. In the last flood in mid 2005 all the sea grass was destroyed and the sea cucumbers with it. He considered that the survival rate of juveniles would be the same for the hatchery and wild population and in a good season could be up to 50%. [26] Mr Laurence stated that In terms of monitoring the population of sea cucumbers this can be done with a trawler and if you get say 4 in a half hour there are a lot there. There are areas where they favour, such as settling on soft bottom not hard rocky reef. When asked if there had been an increase in abundance in deeper waters in the last 10 years, he stated there was hardly any there and that is why it was closed. He also indicated that any new harvest site has to be one where they want to live and one suitable for diving and that the area in question had nice gutters which they favour and that they could be released at Moon Point. He noted that you don’t see anything from Moon Point to the new site and that there were gutters leading from Moon Point to the new site. That when they want to move they puff up and at a certain age they move out into deep water and that in 4 hours they could move 20 kms. [27] When asked if there were other sites of sea cucumbers Mr Laurence said that he had not really seen other sites where they are. In terms of the area required for the site he said a large area was required to produce a commercial catch and that you cant crowd them in a tiny area and that in the site proposed they were 2 gutters which were 150 metres wide in places and that a third of the area was productive. RESPONDENTS EVIDENCE [28] Mr Warwick Nash, a Science leader, Fisheries and Aquaculture, for DEEDI provided evidence for DEEDI in respect of the movement of sea cucumbers8. In it he detailed that he had been regional director of the Worldfish Center, an international non-profit research organisation for 7 years. And that in that role he assisted in developing research projects to investigate various aspects of the aquaculture of sea cucumber and in particular the species sandfish Holothuria scabra. Though not an active participant it was his role to oversee the science being carried out by the research team. The research was carried out in New Caledonia, where the coral forms a broken reef around the island. That there were similarities in habitat and species to Queensland. The overall aim of the sea cucumber 8 Exhibit 4-Affidavit of Warwick Nash -- 9 of 17 -- research in New Caledonia was to develop methods for re-seeding sea cucumber stocks that had become depleted through fishing. [29] Mr Nash stated that Importantly, the experiments were designed to answer the question of whether those sea cucumbers that were not recovered after release had moved away from the area or had died, or were still in the area but undetected. He stated that this had relevance to the Bluefin situation, where very few of the juvenile golden sandfish that were released were recovered, and the fate of the disappeared ones is uncertain because the releases by Bluefin were not done in a way that would allow the causes of disappearance to be determined. [30] Mr Nash stated that the purpose of the research was to determine a no- take zone that would need to be set up to contain animals 10 years after they had been released, if there were no physical barriers to movement out of the area. In that regard the study found that an area of 700 by 700 metres (49 hectares) would be large enough to ensure 94% were still within the area in 10 years. Mr Nash stated that the area of the current Bluefin lease in Hervey Bay is 62 hectares. And that based on the sandfish movement studies in New Caledonia; he believes there is little likelihood that more than a small proportion of the sandfish released by Bluefin in their lease would have moved beyond the boundaries of the lease. He acknowledges that there are some anecdotal reports of beche de mer fisherman observing sea cucumber (including sandfish) being rolled along by the current at the peak of the tide in high-current areas and that the reports he was aware of have occurred on open sandy bottom, none of these reports of rolling movements were in rough bottom areas such as sea grass. [31] Mr Nash further stated in his affidavit that a second controlled study had been conducted by Worldfish to investigate post-release survival of sandfish into habitat that had been identified in previous studies as being optimal for survival, and it was found that survival rates between release as juveniles and harvest at marketable size could be in the range of 7- 20%, although survival rates were zero in some instances. That there had been several reported attempts to replenish wild sea cucumber stocks with the release of hatchery juveniles and the survival rates in their studies in New Caledonia, although low, are in fact towards the high end of sea cucumber survival rates, after release as juveniles, that have been reported and that he believed it is reasonable to expect that Bluefin could expect similar post-release survival rates to these. In terms of the cause of disappearance it is stated that the controlled studies in New Caledonia suggests that the major cause of disappearance is likely to be mortality. It was also noted that a major cause of juvenile mortality is predation and that close inspection of the bottom in areas where the juvenile sandfish were released revealed small crabs were often present. He also notes that sea cucumbers are intolerant of low-salinity water, which can occur in nearshore waters that are close to river mouths and that an important criterion when selecting habitat for releasing juvenile sea cucumbers is therefore proximity to river mouths: release sites should be far enough from river mouths not to experience low-salinity conditions following heavy rainfall. -- 10 of 17 -- [32] Mr Nash concludes that on the basis of the results of studies conducted on sandfish in New Caledonia, as well as his knowledge of the general biology of sea cucumber, it is his opinion that few, if any, of the sandfish in offshore Hervey Bay are likely to have been those that were introduced there by Bluefin Seafoods. That for this to be so would require movement of animals in excess of those reported elsewhere, and survival rates substantially higher than those found in controlled studies where releases were into pre-determined suitable habitat for juveniles of the species. Mr Nash noted that during his employment with the Worldfish Center in the Pacific, that he became aware of communication by Bluefin Seafood with governments of Vanuatu, Solomon Islands and Fiji concerning the release of juvenile sandfish in these respective countries. [33] Mr Nash at the hearing acknowledged that the currents in Hervey Bay may be different to those in New Caledonia and confirmed that the seagrass habitat was the same. He disagreed that the juveniles would move out of the shallow water over time. He confirmed that most of the loss of juvenile sea cucumbers was due to mortality in New Caledonia. He stated his objection to the deep water sea cucumber site sought by Bluefin were firstly that juveniles could not be released there and that there was a high risk of mortality of 90% over a year to grow them longer in tanks. Further that it would be more costly to have an extended growing time in the tanks and that it remains to be demonstrated that the sea cucumber aquaculture is profitable. [34] Mr Kerrod Beattie, the DEEDI manager for Aquaculture Policy and Industry Development provided an affidavit to the Tribunal9. He stated that his role was responsible for day to day management of all issues relating to aquaculture within the Sate of Queensland, including the development of policy, issuance of authorities (resource allocations and general fisheries permits). That he was asked to provide comments on the RAA application by Bluefin to ensure the issues applicable to areas under his jurisdiction, namely aquaculture, were considered as part of the assessment process. The information he supplied to Dr Nikki Moore, regional manager, Fisheries South relevantly included the following: There was no clear evidence that stock previously released by Bluefin Seafoods at Urangan and or Moon Point had migrated to the area they were seeking. The issuance of an authority to harvest wild sandfish was contradictory to the previous decision by the Management Advisory Committee on sandfish where they sought closure in the bay for sustainability reasons which was granted, 1 July 2001. The area applied for was approximately 40sq kilometres. This area according to Bluefin Seafoods had been surveyed and they estimated that the natural population of stock was 2-3 animals per 100 square mtrs. Refer to the letter from Bluefin Seafoods to Department dated 15 May 2007. This translates to approximately 9 Exhibit 8- Affidavit of Mr Kerrod Beattie -- 11 of 17 -- 1.2 million sandfish where I would consider the vast majority would be non-hatchery reared animals, rather than naturally occurring ones. I investigated possible options for tagging of hatchery reared animals so as the company could distinguish between hatchery reared animals and natural population stocks. My findings were that whilst there had been research into this area there was no evidence that any particular method was effective. This included physical tags inserted into the animals and chemicals such as oxyteraclcline a dye like substance that marks calcium deposits in animals. DEEDI has been developing a regional aquaculture plan for the Great Sandy Marine Aquaculture Plan (GSRMAP) since May 2006. As part of this initiative extensive consultation was undertaken with a very broad range of stakeholders resulting in the identification of 24 new proposed sites for a variety of aquaculture including sea ranching. Bluefin Seafoods were represented at some of those stakeholder meetings by Mr Ross Meaclem. There were numerous opportunities for Mr Meaclem to provide input into the plan as it was being developed but no submissions were ever received including the area that Mr Meaclem had applied for in his RAA application. The area that Mr Meaclem had applied for was not identified either as a preliminary or final site as part of those identified in the GSRMAP. The areas identified as the final sites were allocated through a series of selection criteria including, physical suitability characteristics, and minimalist conflict with existing users including whale watching and fishers, navigation hazards and potential for interactions with megafauna (whales dolphins and dugongs). The area that Mr Meaclem had identified abutted onto an existing RAA and would have required a buffer between them if identified as one of the 24 sites. Once the areas were identified and agreed upon i.e., 24 sites, DEEDI consolidated its position by confirming that no new sites would be approved other than those identified as part of the whole of government planning process. [35] In his evidence at the hearing Mr Beattie stated that though he was not a genetics expert he was not convinced that that the DNA testing proposed as a monitoring system would provide accurate results. He confirmed that in the planning process for the Great Sandy Strait Marine Park Plan the area in question had been eliminated as a possible site for sea ranching though there were two other sites, being 12 and 14 which had been identified as areas for sea ranching. [36] Dr Brigid Kerrigan, the fisheries manager of the Reef Line Harvest and Development Fisheries in Queensland provided an affidavit to the Tribunal10. She stated that the sea cucumber fishery is one of the harvest 10 Exhibit 8- Affidavit of Dr Brigid Kerrigan -- 12 of 17 -- Fisheries within the portfolio of fisheries that she was responsible for the sustainable management of. That the commercial harvest of sea cucumber is limited to holders of Harvest Fishery Licences endorsed with a “B1” symbol and that there are currently 18 such licences. That the sea cucumber species of interest to Bluefin (sandfish and golden sandfish) within Hervey Bay are part of the existing commercial fishery and commercial take of these species can only occur under an existing harvest fishery licence. Currently Bluefin Seafoods does not hold one of the existing authorities. Under a condition of authority the current allowable catch of sandfish in Hervey Bay is set as zero. [37] Dr Kerrigan stated that effectively the sea cucumber fishery in Hervey Bay is closed as a result of overfishing in the late 1990s. That 50% of the catch of sand fish in Hervey Bay in 1996 can be attributed to the licence owned at that time by Mr Meaclem. That the harvest of sand fish in Hervey Bay as being akin to a mining operation. The decision to close the sand fish fishery in Hervey Bay was based on anecdotal evidence of fishers who have collected in the area over the past 10 years that stocks had declined significantly from past levels; the obvious risks to sand fish stocks from continued over fishing; and their inability to recover in the short term and a cautious approach to management that must be adopted in light of limited evidence or information regarding these stocks. [38] Dr Kerrigan further stated that the closure will remain in place until there is evidence of stock recovery. That a process for the opening of a currently closed (i.e. no take or zero total allowable catch species) sea cucumber fishery had been set by the harvest Scientific Advisory Group with the stock needing to reach 70% of its unfished biomass prior to opening and a harvest limit set at less than 10% of the estimated standing biomass. The species are to be surveyed using a rigorous survey design endorsed by the scientific advisory group. And once the fishery is open surveys will be required every three years to ensure the biomass remains above 50% of the unfished biomass. If the biomass falls below 50% of the unfished biomass the species total allowable catch will be set at zero effectively closing the fishery. [39] Dr Kerrigan stated that Fisheries Queensland had received an expression of interest from one of the existing endorsed Harvest Fishery holders to survey the Sandfish population in Hervey Bay to determine whether it had recovered from overfishing and they have been informed the above process would need to be followed. And in a similar way if Bluefin Seafoods propose to survey the populations of sandfish in Hervey Bay the sampling design and results of the survey would have to be reviewed and approved by the Scientific Advisory Group. [40] In her oral evidence at the hearing Dr Kerrigan stated that while in an area subject to an authority seeding and grow out is appropriate it is not good to manage a wild fishery by re-seeding. That the whole area is part of the commercial fishery and it just happens that the sandfish catch is set at 0. That there is no evidence that the existing sea cucumbers in the area are other than wild. There has been no survey done on sea cucumbers and they don’t know the current stock. That the area in question is the general -- 13 of 17 -- area where previous harvesting occurred and any catch of wild sea cucumbers needs to be taken under an existing authority by hand. [41] The Chief Executive filed correspondence it had received from the Environmental Protection Agency dated 4 March 2009 which provided advice regarding the application relevant to considerations under s60A of the Act11. RESPONDENTS SUBMISSIONS [42] The Chief Executive made submissions at the conclusion of the hearing. That there are concerns by the department that there is not a satisfactory procedure in place to determine when stock taken are natural harvest or seeded juveniles The approach proposed by Associate Professor Knibb was one which was technically possible and procedures could be put in place but there was a difficulty with the paternity issue, that is how you can determine the long term Y history of wild and harvested stock. The Chief Executive suggested that at present, this could not be determined with the current stock located at the RAA site and until such time that it could be done, an RAA could not be granted. While It has been claimed that the juveniles from the Moon Point lease found there way to the area Bluefin wishes to harvest after the floods in 2005, Mr Laurence said he would expect that as a result of flood they would have died. That while Bluefin says it has an entitlement to the area because it is their stock, Hervey Bay has been a no go zone for fishery of sea cucumber since July 2001 and that is why the stocks are at a high level. There is the question of how the application should be integrated into the Great Sandy Straits Regional Marine Park Plan to which Bluefin did not make a submission. It was noted that the department did not take the plan into account when making its decision. The decision should be affirmed as there is no evidence that the authority should be granted. APPLICANTS SUBMISSIONS [43] The applicant also made submissions at the conclusions of the hearing. That they have worked hard and the government has given them money to build the hatchery. The two areas they have are too small as they only cater for juveniles. They need a fattening area. The DNA testing is the simplest system and they can keep the stock at the hatchery when waiting for batch analysis. DISCUSSION [44] The area which Bluefin is requesting that it be allocated is acknowledged by it as an area where sea cucumbers have and will continue to aggregate and so the area has a wild population of sea cucumbers. A RAA is not an authority to harvest wild stock and even if Bluefin had such an authority the wild stock harvest limit in Hervey Bay is set at zero due to overfishing in the 1990s. Bluefin claims that the stock in the proposed RAA area are there as a result of the seeding that it has done over the years from its 11 SOR page 33 -- 14 of 17 -- hatchery which have moved from the sites it has previously been allocated to this deep water site. Bluefin has no proof of this and points to the fact that there are no sea cucumber sites to be found between its site at Moon Point and the new site. The Chief Executive argues that sea cucumber are incapable of moving such large distances relying on studies done in New Caledonia which are described in the affidavit of Mr Nash. Mr Meaclem argued that the currents may be different in Hervey Bay and New Caledonia as a result of the different terrain and so there may be more movement between sites in Hervey Bay. Bluefin only has the evidence from Mr Meaclem and Mr Laurence to support this theory as there has been no testing done of the sea cucumbers at the new site to compare them to the juveniles released by Bluefin. Mr Meaclem acknowledged that at best the theory was a reasonable assumption. Mr Beattie in his affidavit considered that the vast majority of sea cucumber in the area in question would be wild and that there was no clear evidence that stock previously released by Bluefin at Urangan or Moon point had migrated. [45] As a result of developments in DNA technology there is now a way of testing sea cucumbers to determine if they are wild or hatchery stock as described in the report of Associate Professor Knibb. If this method was used, it would be possible to analyse sea cucumbers in the proposed RAA site to determine their origin. Had evidence as to the origin of individual sea cucumber been available to the Tribunal it could have been persuasive; however it would appear that apart from some limited research by Associate Professor Knibb; no experiments that could be replicated have been conducted with a large enough subset. [46] The Tribunal notes that the testing strategy proposed by Associate Professor Knibb involves taking a sample from a selection of 100 sea cucumbers from a defined area, testing the sample and then harvesting a percentage of the sea cucumbers in the area based on an agreed limit having regard to the percentage of wild and seeded stock in the area as determined by the testing. He makes it clear that this is not real time testing and it is based on a population estimate. Therefore by necessity some wild stock will be taken as the harvest will be based on a percentage of stock in the area and not on the basis of whether the stock is wild or hatchery stock. In effect this is a reseeding program of the wild stock. Dr Kerrigan in her affidavit made it clear that reseeding is not a good way to manage a wild stock and Bluefin has no authority to take wild stock. Dr Kerrigan also makes it clear that if the wild fishery is to be reopened it will be based on evidence of stock recovery as outlined in her affidavit through a stock assessment that is approved and the results assessed by the Scientific Advisory Group. [47] If the area is allocated to Bluefin for sea ranching this will also mean that harvesting of the wild stock will not be able to occur within the area as Bluefin will require exclusive access to it. This is clear from Bluefin’s submission that any future re-opening of the closed wild fishery would be negligible but they would have no problem allowing access to them with the exception of our designated deep water area which obviously we would be faming. Dr Kerrigan notes that one of the wild harvest licence holders had approached the Department about conducting the survey work -- 15 of 17 -- necessary to consider the re-opening of the wild fishery already and so it would appear that there is some interest in the Wild Stock of sea cucumber in Hervey Bay. The affect of granting this authority will be to lock out fishers with wild harvest authorities at a future time when the wild stock has recovered sufficiently for the harvest ban to be lifted. Bluefin’s own evidence is that this site is the only site in Hervey Bay where adult sea cucumbers are found and Dr Kerrigan confirmed that the area in question is the general area where previous harvesting occurred. This is a ground for denying the application in accordance with section 59 of the Act in terms of the best management and use of fisheries resources or habitats. [48] Bluefin currently has approval for its hatchery and has two RAA areas. On the evidence of Mr Nash the RAA areas which Bluefin currently has should be of a large enough size for the majority of the sea cucumbers seeded there to remain after 10 years. It is very unfortunate that as a result of the floods in 2005 the sea cucumbers from the sites were lost. Importantly there is no evidence that demonstrates conclusively where these individuals may have gone. Mr Laurence in his evidence indicated that they had died while Mr Meaclem is adamant that they moved to the deep water site. Bluefin has arrangements with other countries for the seeding of its juveniles and the harvesting of wild sea cucumbers and so has other sources of income apart from the Hervey Bay sites. It is acknowledged that Bluefin has made a major investment in the sea cucumber fishery and other fisheries of $2,000,000. It is as a result of a natural event, flooding, that Bluefin has lost its production and it is now seeking to replace that loss with sea cucumber found in another area. Any personal hardship Bluefin suffers is as a result of the flood and not of any decision of the Chief Executive in regard to the RAA. There is no satisfactory proof that the sea cucumbers in the proposed RAA area are from Bluefin’s stock and the wild stock are not available and even if they were Bluefin does not have a B1 fishery symbol to harvest them and so the granting of the authority will not necessarily ameliorate any personal hardship of Bluefin. [49] There has been a planning process undertaken by the Chief Executive in the Great Sandy Regional Marine Aquaculture Plan for which Mr Meaclem attended some of the stakeholder meetings but did not make a submission. The Tribunal notes that the application by Bluefin for its RAA was made on 16 May 2007 and the draft plan was released in July 2008, so the department had the application during the period the draft plan was formulated. The draft plan includes some areas for sea ranching but not in the area requested by Bluefin. The plan was not policy at the time the decision was made and was still not policy at the time of the hearing and so it has not been considered by the Tribunal. [50] The matters required to be considered by the Tribunal under s60A of the Act are dealt with in the correspondence from the Environmental Protection Authority. The Tribunal notes that the authority considered that this was a relatively low impact activity and set out a number of conditions which they would expect to find in any approval by the Chief Executive. [51] The sea cucumber fishery in Hervey Bay was closed due to depletion and it now appears to be recovering. Bluefin argues that the recovery is due to -- 16 of 17 -- its seeding of 2.3 million sea cucumbers over the years and that it should have access to the stock which are now available. This view is not supported by the Chief Executive and the Tribunal is not satisfied that the application should be approved. Even with the best method available to Bluefin for testing of sea cucumbers prior to harvesting there will still be harvesting of wild stock. If the application is approved and it is found that on testing, the stock is wild stock, that stock will not be available to Bluefin and will not when the fishery is reopened be available to authority holders who have the appropriate B1 authority to harvest wild stock. [52] The Tribunal finds that the decision to refuse the application was not manifestly unfair because there was insufficient proof to justify its premise that the hatchery stock had moved to the deep water area. The Tribunal also finds that the decision to refuse the application will not cause severe personal hardship to Bluefin for the reasons set out above. [53] The decision of the Chief Executive is confirmed. -- 17 of 17 --