Legal Opinion on NBA's License Renewal Refusal

Background and Relevant Legislation

You are to prepare a legal opinion of no more than eight pages in length [including footnotes], based on the following set of facts. A bibliography must be provided, but will NOT count towards the 8-page length of the expected opinion. The written opinion which is to be submitted electronically by Moodle is due on 14th September 2019 

Under the [fictional] Wildlife Protection Act 2019, any decisions related to the protection of New Zealand’s native butterflies are subject to the approval by the Minister of Wild Animals – Jack Wheeler. The Minister has the responsibility of administering a significant number of reserves. Many of the reserves are under the day-to-day management of reserve boards – who operate as a panel, but the Minister remains the administrative body of the reserves. 

Wheeler has recently established a panel to exercise this function on their behalf for the Hauturu/Great Barrier Island [the Island]. Hauturu/Great Barrier Island is a small butterfly reserve where one of New Zealand’s rarest native butterfly is thriving; it is considered to be an outstanding natural landscape with no human-made structures on it. 

The panel is made up of local Auckland residents and business owners in the Hauraki region and based in central Auckland. The Panel has the authority to create regulations, levy fees and grant operating licences which relate to Island. The Panel has the power to ultimately ban anyone or business operator from the Island if they fail to adhere to the regulations. The Panel announces that it intends to raise the annual fees for licences to reflect the rising costs of maintaining the Island’s butterfly reserve.

The Society of National Butterfly Association [NBA], is a charitable body whose specific purpose is to educate people about New Zealand’s native butterflies. The NBA, who has been granted the sole licence to take small group premium tours on the Island on five previous occasions, applied to renew their licence. However, the Panel refused to grant NBA a licence on this occasion even though there had been no material change in their circumstances. No reasons were given for this decision. The NBA challenged the decision, and a date was fixed for the hearing. 

The Minister appointed the Tribunal members to hear the appeal and make recommendations to him about whether NBA should be reissued with a licence. During the proceedings, NBA is refused name suppression, largely as a result of the influence exerted by Rupert Graves, [a business developer who hates ‘emotive and preachy’ conservationists] on his fellow Tribunal members. No reasons are given for this interim decision, and as a result, NBA has attracted negative media interest, with tweets alleging that NBA is a front for illegally catching and killing specimens of the rare forest ringlet butterfly from the Island to sell to private collectors. 

Analysis of the Decision and Ethical Issues

Joseph [a tour operator], one of the Tribunal members left the room to answer a phone call. Not long after, one of the Board members noticed a tweet from Joseph which said “Providing the ultimate butterfly tour experience on Great Barrier Island. Hop aboard’’. Joseph has been a long-time friend and colleague of Jack Wheeler. They shared a flat at university, and the tour operation is a joint venture between them, although Jack Wheeler is not involved in the day-to-day operations of the tour operation. 

At one point the NBA board members were asked to leave the hearing while the Tribunal discussed ‘one or two matters’ about the licensing. When the board members were called back into the room, they were not told anything about the discussions that had taken place in their absence. Later NBA discovers that one of the Tribunal members, who is married to one of the Panel Members, recounted the tweets that NBA is a front for an illegal organisation exporting rare butterfly specimens to other Tribunal members.

Ministry officials presented written evidence at the hearing that contains critical complaints about NBA based on documents that were not presented to the Tribunal members. The NBA board asked to see the documents, but the Tribunal refused to direct the Ministry officials to provide copies of the documents to the Board, due to the influence from Judas (another Tribunal member and a long-standing campaigner against tourism on the Island because of the impact on tourists have on the landscape).

Nicodemus, a leading public lawyer and another member of the Tribunal, skilfully persuades the rest of the Tribunal to ignore the evidence about the environmental impact of NBA’s native butterfly research, its support of 2 PhD students at the University into the native butterfly breeding programs at 2 other major butterfly reserves and its paying significant amounts to support education programs in prominent museums, libraries and botanical gardens across the country. Not-withstanding the fact that education is the primary criterion in the regulations for allowing an operator to gain a licence and operate on the Island. Other criteria include providing suitably qualified trained staff, active research and development in the area of butterfly research, the organisation's ability to provide help and raise money for native butterfly preservation and the contribution to training educators in other organisations about New Zealand’s native butterflies. NBA runs a special qualification for their staff and often has fundraisers to support their work with butterflies. The NBA has also developed a strong interest in New Zealand’s native bees and has undertaken a 3-year project documenting New Zealand’s native bees in the National parks. This project is largely undertaken by NBA’s volunteers, and so far information on eight species have been identified on the Island and 120 species in other national parks across the country. None of these matters has been considered by the Tribunal.

A brief one-page decision, citing the Tweet allegations as the reason for the final decision, the Tribunal upheld the refusal to grant NBA with a license. After the Tribunal hearing, it was alleged that Nicodemus is a close friend of the Minister and that they were texting and tweeting each other throughout the hearing.

The NBA Board members subsequently discovered that accountant chairing the Tribunal belonged to the firm that was acting for Joseph’s tour company. Advise NBA who wishes to apply for a judicial review on whether the decisions made by the Tribunal can be challenged, and on what grounds the application could be based. Illustrate your answer by specific reference to general principals and decided cases.