An administrative decision by the Minister for Infrastructure and Tourism, Hon 'Akosita Lavulavu to decline whale watching licenses for six licenced operators was quashed by Lord Chief Justice Whitten, who found her decision had erred in law and “it was so manifestly unreasonable, no reasonable minister could have reached it”.

The Chief Justice pointed out that “the ministry's policy or practice cannot create or confer on itself any power which is not provided for by the Act or the Regulations.”

The Lord Chief Justice's judgment in the civil jurisdiction of the Supreme Court was delivered on November 13 after the plaintiffs: Jones Business Services Ltd., Endangered Encounters Ltd., Shell Garden Ltd., Tongan Expeditions Ltd., Whales in the Wild Ltd., and Diane Clarke Trading as Vaka Vave, applied for a judicial review, against the minister's decision.

The six tourism operators sought declarations that the minister's decision was wrong at law and that it be quashed.

The defendant was the Kingdom of Tonga, through the acts and omissions of the Minister and CEO of the Ministry of Infrastructure and Tourism.

The Chief Justice said the purpose of the remedy of judical review is to ensure that the individual is given fair treatment by the authority to which he has been subjected. The decision maker must understand correctly the law that regulates his/her decision-making power and give effect to it.

“Where the decision maker has misunderstood the statutory language, the court must intervene to ensure that effect is given to the ascertained purpose of the legislature when it enacted the Act and Cabinet consented to the Regulations.”

“Here the defendant clearly either ignored or, at least, misunderstood the relevant provisions which stipulated a validity period for licences of three years.”

The Chief Justice said that by misapprehending that the plaintiffs' 2019 licences were valid for three-years, and instead treating them as only valid for approximately four-months from issue to November 30, 2019, the Minister's decision was inconsistent with section 7 of the Act and regulation 7(1).

“I agree with the plaintiffs that the defendant's conduct in this case was an unfair breach of their legitimate expectations.”

Declined whale watching licences

This proceeding started, after the minister on February 28 this year had declined each of the plaintiff's applications for whale watching and whale swimming licences, issued to them in 2019.

The Court heard the whale watching and swimming with whales had developed into an important and lucrative attraction for the tourism industry in Tonga. And that those returns required substantial capital investments and operating outlays for those service providers who are licenced to provide whale watching and swimming services in Tonga.

Under a 2013 Regulation, licences were issued by the Ministry of Commerce,Tourism and Labour.

In May that year, the ministry issued a press release informing the public of the new licence application requirements, that licences issued would be valid for a period of three-years and could be renewed upon application.

In July/August 2013 each of the plaintiffs applied and were issued licences. Five of the six licences bore expiry dates December 31, 2013. The fourth plaintiff's licence had an expiry date of December 31, 2015.

The ministry's cover letter for each licence advised the licence holder to submit a notice of continued activity (NoCA) each year to the ministry, for the next three years in order to maintain their licence.

On September 2, 2013, in response to a query by the the third plaintiff regarding the duration of its licence, a ministry official confirmed that the licence was for three-years.

Each of the plaintiffs complied with the annual 'NoCA' requirements in 2014 and 2015, and continued their whale watching activities during those years in accordance with their licences issued in 2013.

However, on October 31, 2018 Teisa Fifita from the ministry emailed all operators, including the plaintiffs on the upcoming 2019 season and attached a list of operators.

There were allowed 20 in Vava'u, eight in Ha'apai, six in Tongatapu and three in 'Eua. That was a total of 37 with 10 marked as "continual" and the balance, which included the plaintiffs, marked "renewal".

Limit included new licences

The Chief Justice said, each of the plaintiffs applied for renewal of their licences, paid the relevant renewal fees and were issued with renewed licences, which they received between July-September 2019.

Each of the 2019 licences were subject to the same conditions as the previous licences, namely the regulation. Each bore a date of issue of July 1, 2019 and an expiry date unless renewed of November 30, 2019.

“It is those licences that are of this case and upon receipt of their 2019 licences, the plaintiffs started preparations for that season.

“They also planned and received deposits for new and recurrent bookings for the 2020 season.

“On the basis of the earlier ministry's confirmation in 2013 and payment of their renewal fees in 2016 and 2019, the plaintiffs believed their 2019 licences were valid for three-years.”

However, on February 2, 2020 the minister issued an order in exercise of the powers conferred by Regulation 5(7)(a) and (b) of the Whale Watching and Swimming Regulations: “That the number of licences be issued under the Whale Watching and Swimming Regulations 2020 shall be limited to not exceed 7 for Tongatapu, 20 for Vava'u, 10 for Ha'apai, and four for 'Eua.”

On February 27, the minister also wrote to each of the plaintiffs, declining their applications in effect of the order. This was due to record number of applications, and stating that the limiting of licences was “necessary for the management, protection and conservation of the whales and sustain the economic viability of the industry”.

No part of plaintiffs' renewal fees had been rebated or refunded to them.

However, in his affidavit, Tourism CEO Sione Moala-Mafi deposed that for the 2020 season some new licences were issued.

“Of those, four new licences were issued in Vava'u and one new licence was issued for each of the other islands. When asked during submissions about the reasons for the new licences being issued, Mr Sisifa told the Court that he had sought instructions, but had not received any explanation,” the Chief Justice stated.

No justification

The Chief Justice said, the defendant clearly either ignored or at least misunderstood the relevant provisions, which stipulated a validity period for licences of three-years.

“In my view, there was no justification for not giving effect to those provisions in accordance with the plain and natural meaning of their terms.”

He said that by misapprehending that the plaintiffs' 2019 licences were valid for three-years, and instead treating them as only valid for approximately four-months from issue to November 30, 2019, the minister's decision was inconsistent with section 7 of the Act and regulation 7(1).

“I agree with the plaintiffs that the defendant's conduct in this case was an unfair breach of their legitimate expectations.”

He said, a legitimate expectation arises where a person responsible for making a decision induces in someone who may be affected by the decision.

“Here, the plaintiffs had received earlier confirmations from the former ministry in charge that their licences were valid for three-years from issue. Between then and now, neither the Act nor the regulations were amended. The prescribed duration period of three-years remained and the plaintiffs complied with the actual regulatory requirements every year,” he said.

“In addition, at no time did the present ministry ever explicitly purport to change the statutory duration of licences not withstanding the erroneous expiry dates inserted in them.

“It was only when the minister made the decisions here under consideration that the plaintiffs became aware that the minister had effectively purported to do just that. To that point, the former and current ministries had induced in the plaintiffs, a reasonable expectation that they would issue and honour the licences in accordance with the Act and its Regulations,” he said.

“The minister's decision was a marked departure and inconsistent with that legitimate expectation. It was unfair in the relevant sense and cannot be condoned by this Court.”

Errors of law

The Chief Justice then ruled for the plaintiffs and said the minister's decision was infected by errors of law and were ultra vires of the Act and the Regulations.

He ordered that the expiry dates of November 30, 2019 inserted on each of the plaintiffs' 2019 licences are invalid.

Instead, “Each of the plaintiffs' licences issued in 2019 are valid and will continue to be valid (subject to the provisions of the Act and the Regulations) for a period of three-years from date of their issue.'

In addition, the minister's decisions purporting to decline each of the plaintiffs' whale watching and swimming licences issued in 2019, are quashed and set aside.

The Chief Justice then ordered the defendant to pay the plaintiffs' costs in this proceeding.

The plaintiffs were represented by Mrs D. Stephenson.

Mr S. Sisifa S.G. represented the defendant.