The Supreme Court has quashed a decision by Minister for Tourism Akosita Lavulavu to deny whale watching and swimming licenses to a group of companies.
Lord Chief Justice Whitten said the Minister’s decisions were infected by errors of law.
The judge criticised Hon. Lavulavu’s behaviour and said citizens had legitimate expectations of natural justice and procedural fairness.
A total of six companies, 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 all had their licenses effectively curtailed and appealed the Minister’s decision.
In February this year Hon. Lavulavu, declined each of the plaintiff’s applications for whale watching and whale swimming licences.
The whale watching industry is regulated by the Whale Watching and Swimming Act. The Act was amended in 2012, and in 2013, the Whale Watching and Swimming Regulations came into effect.
In May that year, the Ministry issued a press release saying that licences would be valid for a three years and could be renewed upon application.
Each of the plaintiffs applied for and were issued licences. The Ministry’s cover letter for each licence advised the licence holder to submit an a notice of continued activity to the Ministry “for the next three years” in order to maintain their licence.
In July 2015, all operators were advised that all applications for licences would be administered by the Ministry of Tourism. In 2016, the plaintiffs applied to the Ministry of Tourism, with payment of the relevant fees, and were granted, renewed licences.
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 and September 2019. Each bore a date of issue of July 1, 2019 and an “expiry date unless renewed” of November 30 the same year.
On receipt of their 2019 licences, the plaintiffs commenced 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 a period of three years.
In February this year the Minister said the number of licences issued under the Whale Watching and Swimming Regulations 2020 would be limited to not more than seven for Tongatapu, 20 for Vava’u, 10 for Ha apai, and four for ‘Eua.
On February 27, 2020, Hon. Lavulavu wrote to each of the plaintiffs, telling them their applications had been declined.
The businesses lodged an appeal and in correspondence with the complainants the Minister cited what she said was scientific evidence showing that their activities would interfere with the whales, the Covid-19 pandemic and Cyclone Harold.
She promised a decision would be made no later than the end of June, but in May lawyers for the plaintiffs lodged a complaint with the Ombudsman’s office challenging the validity of the Minister’s decision to decline the plaintiffs’ applications.
On June 17 the plaintiffs were granted leave to apply for judicial review of the decisions.
After reviewing submissions and evidence in the case, Lord Chief Justice Whitten said Hon. Lavulavu did not give the plaintiffs any notice that she was considering effectively cancelling their licences, the grounds for doing so and, perhaps most importantly, why she had chosen theirs over others which were renewed.
She did not give the plaintiffs any opportunity to be heard before making her decision.
“The Minister is commended to carefully bear in mind and give effect to those legal obligations if and when any future action pursuant to the Act and the Regulations might be considered in relation to the suspension or cancellation of licences,” the judge said.
The judge said the expiry dates of November 30, 2019 inserted on each of the plaintiffs’ 2019 licences were invalid.
Each of the plaintiffs’ licences issued in 2019 would continue to be valid for a period of three years from the date of their issue.
“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 judge said.
The Minister was ordered to pay the plaintiffs’ costs.
