Presented on: 31/3/05
Prepared by: Scott Macindoe
For the attention of: Board of NZRFC, NZBGFC Management Committee and the option4 Project team.
Report on Kahawai Legal Challenge and the associated public awareness/fund raising Campaign
Executive Summary
The Kahawai Legal Challenge is on track. The legal team met early March – we believe we have a strong case and it is expected that the Statement of Claim, complete with suite of affidavits will be filed in the High Court by the end of April.
The public awareness/fund raising campaign is tracking well. We had initially planned for the campaign to be peaking in February/March. We were late coming into Christmas with collateral, print material and media penetration having:
- underestimated the extent of the project and
- having been distracted by the Ministers advisor.
A big effort through January and February saw the campaign get back on track with a revised time line. The tsunami dominated January and February and we were lucky not to have our campaign swamped by that most tragic and extraordinary event.
Summary of the form of the legal challenge
Concern exists that pursuit of the Kahawai Legal Challenge will undermine or affect the relationship that exists between recreational fishers, the Ministry, the Minister and industry.
From a legal and advocacy point of view, it is important that the case is presented to the High Court in a professional manner, is well founded in law, and well intentioned (in the sense that it is not mischievous and addresses a genuine policy problem), in order to "enlist" the assistance of the High Court Judge to declare and clarify the law in the way that will be asked of it.
A declaratory judgment style application for judicial review asks the High Court Judge to declare what the law is. This type of application is entirely within NZ's constitutional framework, which allows private citizens (including advocacy groups) to apply to the Court to declare what the law is.
The Ministry has a preferred policy position (which is firmly established and which it holds to) namely that it makes allocation decisions based on catch history. This includes initial allocation decisions for stock brought into the Quota Management System. There are a number of reasons why this policy is administratively convenient for the Ministry, however allocation of fisheries based on existing catch history is not expressly stated in the legislation.
Therefore, where there is an entrenched policy position by a regulatory agency, recourse to the High Court is proper, and is consistent with a responsible approach taken by a broadly based group representative of the fishing public. Short of some major change in policy position, there is realistically no way (short of litigation) to change the Ministry's policy preference given the degree of stakeholder interest by commercial fishers.
An application to the High Court aims to work within the law, and within the framework of the current Fisheries Act 1996. What is challenged in judicial review proceedings is not the legislation (which the High Court Judge is obliged to follow) but its interpretation and implementation.
If a claim to the High Court is properly founded in law, well presented, etc, then, over time this may enhance the reputation of recreational fishers as an advocacy group, as threats of challenge will be taken seriously.
It is impossible to measure, but an enhanced reputation may result in other "victories" simply because the regulatory agency and industry take the groups seriously. In the long term this may result in greater influence over policy, etc, not less.
Of course litigation is just one of the available "tools", and does not preclude a more "consensus" style on other issues.
Timelines
Legal Challenge timeline
We are advised that at present High Court judges in Auckland have capacity to deal with civil cases. Once proceedings are filed, the High Court will convene a conference to schedule timetable orders, giving timetable directions for the Minister/Ministry, and fisheries companies etc to respond, with a right of reply by the applicant parties.
It is thought possible to obtain a hearing in December, if the case is filed in April.
Campaign timeline
With the filing of the Statement of Claim only 3 weeks away we are focused on maximum impact with media to take advantage of this change of status of case – i.e. we go from threatening Court action to actually filing proceedings. This is news. We owe it to the thousands of people who have agreed to take on the booklet and support the case to maximize this news opportunity.
On or about the 7th April we intend to send a letter to all booklet holders. This will carry encouragement, an Update, tips on how to present the issues and a questionnaire on how they are fairing with their booklet, and of course a reply paid envelope. This exercise will give us a snap shot of the booklet program and a more accurate picture of what to expect when the booklets are returned.
We do not want the booklets back for several months or until they are completed.
We have a modest advertising budget which we see being best spent supporting the filing of Statement of Claim. The 30 second sound bites for radio are ready to be recorded, the ½ page newspaper ads and full page magazine ads are ready to go. Several television channels are well aware of the issues and the imminent filing of the Statement of Claim.
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Finances
Until all booklets are returned we will not know the outcome of the campaign. We do not want the booklets back in a hurry – once they are in the mail returned to us they are “over”.
We want the booklets in circulation for as long as possible in order that the heroes holding the booklets benefit from publicity either generated by the filing of the Statement of Claim or paid advertising or public good type advertorial in the media.
Campaign Income
We are receiving a trickle of books back which we are able to analyse for results. In addition, we are randomly telephoning booklet holders to find out what they are up to. These samples indicate that the public awareness/fund raising campaign is on track to generate a surplus of approximately $150,000 after costs. The 0900 KAHAWAI is ahead of budget whilst the online donations, mail donations and sponsorship income are all on track.
A breakdown of Campaign Income to date :
|
| Event/contest donations/T-shirt sales |
28,000 |
| 0900 Income |
5,000 |
| Web Donations |
1,000 |
| Mail Donations |
10,000 |
| Booklet Receipts |
22,000 |
| Sponsorship – Haines Hunter |
10,000 |
| Total income to date |
$76,000 |
Campaign costs
Those costs include:
- Don Glass contract and expenses
- Trish Rea campaign management role
- creative and set up costs
- production of Supporters Packs, T-shirts, posters,
- assembly and dispatch of same,
- database establishment,
- data entry,
- web site development,
- costs to attend events,
- wages and telephone costs for booklet placement phone program advertising.
The Legal Challenge
This is anticipated to cost $250,000. This is made up of:
- Hesketh Henry legal fees,
- affidavit writing costs from John Holdsworth and Paul Barnes,
- OIA charges from MFish,
- court costs and
- secretarial and support responsibilities taken by Trish Rea.
Cash flow
The cash flow requirements of the Legal Challenge and the Campaign will see all of the underwriter’s commitments drawn upon in the short to medium term. Scott Macindoe has put $100,000 into the account of the Kahawai Legal Challenge. The NZBGFC have also paid out their $25,000 contribution and some of the $100,000 they have committed as underwriters.
The overall budget for the Legal Challenge and associated public awareness/fund raising campaign is as follows
| Income |
|
| Booklet Income – net of T-shirts |
320,000 |
| 0900 KAHAWAI |
20,000 |
| Event Donations |
30,000 |
| Website and mail donations |
20,000 |
| NZBGFC investment |
25,000 |
| Sponsor |
10,000 |
| Underwriters |
200,000 |
| Total Income |
625,000 |
| Less Expenditure |
|
| Campaign Costs – net of T-shirts |
280,000 |
| Legal Costs |
260,000 |
| Available to repay Underwriters |
$85,000 |
As cash flow dictates, Scott Macindoe has committed to make further monies available as required as advances to the challenge and campaign. He has made it clear that all accounts will be paid as they fall due, no exceptions.
Achieving these projections requires real focus and effort to empower ordinary people who care to get in amongst their friends and family and generate support. We believe the budget above is achievable. There are no ceilings – it’s just a question of focus and application by as many hands as possible – these budgets can be exceeded if we all get stuck in.
Administration of case and campaign
Approval of accounts and payments.
From the beginning the following protocols have been in place and adhered to.
Monies received from the public is deposited into the Kahawai Legal Challenge bank account that has been established for that purpose. The signatories on that account are Grant Dixon, Mark Kitteridge, Mark Airey and Sam Mossman (three signatures required).
The accounts for the Legal Challenge and the campaign are approved by Jeff Romeril, Keith Ingram and Scott Macindoe.
As required, funds have been issued from the KLC account to the NZBGFC bank account. NZBGFC are paying the accounts on behalf of the Kahawai Legal Challenge in order for GST to be claimed as appropriate. Roz Nelson has dealt with these in her typically very efficient manner. Thank you Roz. The cheques that she draws are signed by at least two of the authorized signatories of the NZBGFC Management Committee.
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Who is being paid how much for what?
- There are a number of people whose services are deemed essential to the success of the legal challenge and the campaign who are being remunerated.
- Stuart Ryan and David Connor of Hesketh Henry are charged out at $340 per hour. This is offset by a very generous pro bono contribution to the Legal Challenge. They take ultimate responsibility for the form of the Statement of Claim and the subsequent events in Court.
- James Bullock of Hesketh Henry is charged out at $150 per hour. Again, this is offset by the pro bono contribution. James is responsible for affidavit writing, research, document administration etc.
- John Holdsworth is now being paid $100 per hour for legal challenge work. His account is issued from Blue Water Research Ltd. He too is expected to deliver high quality affidavit output as well as extensive analysis of the OIA yield. When the decision was made to go with the legal challenge John and his colleagues were successful in securing a number of contracts for research. His workload was and is huge. It was decided that we simply had to barge into that workload and expect output as required on demand, hence the rate agreed upon. Prior to this we have been charged $65 per hour. Again, we are lucky to have such experience and talent to draw upon.
- Lindsay Gregory charges the KLC $100 per hour. His account is from Axys Ltd. Lindsay has put together the web site, the Alerts and unique URL’s for the various databases that have canvassed their subscribers. He has also constructed the database for the Kahawai Legal Challenge and the online data entry screens used by Trish, Jo and Chloe (not to mention the 600 plus people who have entered their own data and responded to the security check answer back email confirmation routine) He consistently exceeds our expectations and delivers distinctive and very professional outcomes. Again, incredibly busy at much higher rates with other clients but has shoehorned the KLC requirements into his schedules. We came close to implosion in December through sheer overload and overwhelm – valuable lessons learnt.
- Paul Barnes is being paid $65 per hour. His account is issued from Paul’s Fishing Kites Ltd. He is expected to deliver high quality affidavits, analysis of OIA information. He has also written an extensive document as requested by the Minister’s advisor pre Christmas outlining the background of the situation for the benefit of the Minister and the new CEO. In addition he has been asked to support a presentation to Ngapuhi as we endeavor to achieve iwi hapu support and understanding of the Challenge. He has also provided valuable input to the summary and presentation of material for the campaign. He has charged out a very small fraction if the hours he has spent to date on this case. I am in awe of the amount of time Paul and others make available to the cause. His business demands every minute he can make available, yet he keeps on fronting up, month after month after month. To date Paul has charged a total of $15,400
- Trish Rea is charged out at $35 per hour for the work she does on the Legal Challenge and $30 per hour for the work she does on the aspects of the Campaign that she is responsible for. The Kahawai Legal Challenge is invoiced on a monthly basis by option4 to recover these costs.
These responsibilities include:
Legal
- Providing the Hesketh Henry legal team with information as required.
- Assisting the legal team by compiling copies of background information and submissions as required.
- Attending meetings with the legal team and our representatives to record the process and ensure the completion of any additional requests.
- Coordinate attendance of others at scheduled meetings.
Campaign
- Assisting in the development of the Kahawai Legal Challenge Booklet.
- Liaising with the printers to design and produce the Kahawai Legal Challenge Booklet.
- Liaising with the printers to supply other material i.e. banners, t-shirts, posters.
- Liaison with suppliers i.e. Amex, Axys, Snell Packaging.
- Coordinate the compilation of Kahawai Legal Challenge Support Packs by a team of workers.
- Coordinate the distribution of the Kahawai Legal Challenge Support Packs to the distributor network.
- Providing logistical support for attendance at events i.e. Ngapuhitanga Festival, various fishing contests,
- Media liaison.
- Recruiting, training, supervising and supporting Jo Harris, Chloe Williams
- Banking of money into the Kahawai Challenge Fund.
- Maintenance of the website www.kahawai.co.nz
- Organise and monitor the online donation facility on the website
- Reply to all public correspondence/requests.
- Writing Kahawai Legal Challenge Updates for Fishing News each month
- Jo Harris and Chloe Williams are each paid $20 per hour. They are responsible for a range of roles
- Receipting and reconciling of monies received from returned booklets.
- Data entry of details of booklet holders and those who make an investment
- Fulfillment of orders for posters, t-shirts and new booklets
- Maintenance of database and “mining”
- Telephone canvassing of option4 database members for placement of Supporters Packs into the market. Jo and Chloe are currently placing 15 Supporters Packs each per day, 5 days a week. This is about to increase to 6 days a week with the advent of ramp and marina attendance. We envisage being able to maintain that placement rate i.e. 200 per week, for at least 10 more weeks. We estimate that these booklets will return on average $140 each, net of T shirt sales.
- Telephone canvassing of other “lists” – charter operators, retailers and manufacturers etc
- Booklet follow up. It will be some time before we know what % of booklets are returned. We are budgeting on at least 80% being returned. We have good records of each booklet holder and a good capacity to follow them up. Email, snail mail and now phone as required. As we “mine” the option4 database we are talking with about 5 existing book holders per day and are getting a better idea of how existing books are behaving – too early to call, however it looks encouraging
Campaign to place Support Packs
We have aimed the main thrust of the Campaign at empowering ordinary people to do their bit. We have built a powerful tool, the Kahawai Legal Challenge Supporters Pack. There are currently some 2,800 Packs in the market and 2,000 in stock. The challenge is to get those books out there. When people realise what is at stake they get stuck in. We will not know how successful the campaign is for several months. We have begun calling people and early indications are that the program is on track. Some people have placed hundreds, some dozens, some, just a few. Every single solitary Pack in the hands of someone who cares counts.
For once, we are in command of time relatively speaking. The ridiculous 60/90 day nonsense we have become accustomed to dealing with for years does not apply here. Having said that, time rushes past.
Don Glass has made a “game breaking” contribution with his willingness and commitment to attend over 50 fishing contests and events throughout the North Island right through Christmas, January, February and March. He is having a very well earned break and will be returning in early April. The enthusiasm of local media to interview Don and broadcast the message was a feature of the work Don has delivered.
Jeff Romerill and Richard Baker have been very proactive in promoting the Support Packs at club level. We have high hopes of these placements.
We have initiated a telephone program to tap into the option4 database over March. This is proving to be very effective with about 150 books a week being delivered into the hands of enthusiastic people keen to do their bit to raise public awareness and funds for the Challenge. We believe we can maintain this rate of placement for the next 10 weeks at least. This public awareness/fund raising campaign is all about getting the Kahawai Legal Challenge Supporters pack out to as many interested, committed people as possible.
We are going to have another go at persuading more charter operators to buy in to the booklet approach.
The ramps have yet to be canvassed. This is in planning. Remember, for a change, we have time to get the issues presented to the public.
We are endeavoring to ensure good publicity surround the filing of the Statement of Claim in April. This, combined with a letter to all booklet holders in April will achieve more momentum for the campaign and, we hope, a pulse of requests for Support Packs.
Now that the model for the campaign has been tested and proven we can utilise all the volunteers we can get. Solid, reliable, available people willing to “take a chance” - count on comprehensive training – jump aboard for an exciting and fulfilling ride.
Some of the mistakes made and lessons learnt
We have learnt much so far. Some of the mistakes we have made are as follows:
- Trying to launch too early. What we have learnt however is that this campaign is constantly evolving and relaunching. The filing of the Statement of Claim in late April is an obvious opportunity for wave of media focus and another “launch” of campaign.
- Tackle shops and charter operators. We assumed (incorrectly) that these sectors would embrace the poster/booklet combo whole heartedly. Multiple booklets and regular reordering were envisaged. Has not happened. We will keep trying to promote to these guys and come up with a more attractive proposition. We are looking for a prominent/respected charter skipper to help us with this.
- A couple of major fishing competitions have been reluctant to host the KLC campaign citing conflicts of interest with sponsors or relationship with MFish. Unexpected, however we can only try harder next time.
- The basic assumption that people would make an investment/donation and then consider buying a T-shirt. Sadly, many are buying a T-shirt and leaving it at that. We initially estimated orders for about 4000 t-shirts. This estimate has now risen to about 11,000 T-shirts prompting the decision to import some at a better rate. Final arrangements to be confirmed.
- Phone numbers. As we “mine” the valuable resource of the option4 database we find our focus on email and lack of focus on address, phone number over the last 4 ½ years is costing us. When we emailed the database in December, January and February we were disappointed at the low response rate to taking up the KLC supporters pack – just over 5%. However, when we telephone those same people we are enjoying 70% plus response. If only we had more phone numbers, with work and/or home detail to help work out when to call people. However, we are working through the lists and finding the numbers and getting great response when we do get through.
- The media are a hard nut to crack. The issues are complex and the simplification is difficult. Television keep talking about covering the story – no yield yet. They will be well briefed for the filing of the Statement of Claim. The last couple of weeks on Geoff Thomas’s Sport Radio show has yielded some keen Support Pack holders. Radio Watea talk back show with Titewhai Harawira has generated good responses.
Highlights – only a few of many
- Don Glass on the road – a huge commitment by Don and Annette. Over 50 events attended flying the flag and explaining the issues at stake. This unprecedented effort sets the scene for an informed club membership and contest participant to follow the progress of the Legal Challenge. Don placed over 900 Supporters Packs and sold over 700 t-shirts. To make this all possible, Don has purchased at his own expense a camper van, covered it in Campaign sign writing and hit the road for weeks. He, his wife Annette and the van became a familiar site at so many contests. Don has put in many, many more hours than he has charged the Campaign for. Thank you.
- The attitude, welcome and support of so many Fishing Clubs and contest organisers as they have made room for Don and his show to present the case for the Legal Challenge in the best manner possible. He has enjoyed many hours on the microphone, great hospitality and much intense discussion at these Club venues.
- NZACA Nationals prize giving – the Kahawai Legal Challenge was made very welcome. Great to talk to so many people already holding Support Packs. Real grass roots fishing people having a great time. At least 20 members of the Auckland Lady Anglers Club looking super sharp in their snappy blue “Putting up a fight for the Kahawai” T-shirts – specially embroidered for the Nationals – best dressed team for sure.
- Receiving invitation to present an outline of the Kahawai Legal Challenge to the Board of Ngapuhi. Paul Barnes delivered a very crisp, hard hitting summary of why we are going to Court. This was well received by the Board and quite a few others in attendance. This work has resulted in a commitment by Ngapuhi to take the issues to their people through what can only be described as comprehensive consultation networks and processes. Much of what we had to say about non-commercial fishing interests came as fresh perspectives for them.
- The inaugural Ngapuhitanga Festival in Kaikohe in January gave Jeff Romerill, John Chibnall, John Holdsworth, Paul Batten and Scott Macindoe a great insight as to how Ngapuhi people view their non commercial fishing interests. A 100% appreciation and support from those we enjoyed conversation with. Some 60% of them engaged further with Supporters pack and or poster to pin up on marae or workplace. We could not have felt more welcome.
- The input at so many levels of Naida Glavish. Her advice has been invaluable as we endeavor to outreach to tangata whenua.
- Richard Baker repeatedly visiting asking for more Packs, posters and T-shirts.
- Haines Hunter sponsorship. Lionel Sands and Dennis Kendall of Miller Moyes Seacraft. These blokes have been keeping an eye on the issues as they have developed and when approached to help out they did so immediately and generously, no questions asked. If only more of the tackle and boating industry had similar commitment to and faith in those of us who do the work of advocacy.
- Fishing News. As we have become accustomed, Grant Dixon has fronted again with as much space in the magazine as requested. His editorials have been staunch and on target.
- www.fishing.net sent out a “solar” email promoting the Kahawai Legal Challenge and supporters pack before Christmas to their data base. 115 people immediately requested Supporters Packs.
- Geoff Thomas has provided heaps of coverage in Fishing World and now has initiated a regular slot on his Saturday morning fishing show on Radio Sport.
- Paul’s Fishing Kites Ltd promoted the Legal Challenge and campaign to its data base and we received 55 requests for Supporters Packs. A great response at the right time.
- Working with the likes of Alan Dempsey at Amex T-Shirts and Rex and Sue Tonks at Quadprint. These guys put other work on hold to help us generate initial campaign collateral. The Booklet has been through 4 versions in quick time to get to the edition that we are now distributing. I cannot thank these people enough for their help when needed.
- Sam Woolford of Big Red Fishing Tackle has actively promoted the booklets and posters to tackle retailers.
- Working with the team of Jo Harris, Chloe Williams, Georgina Greville, Phil Van Logem and Trish Rea has been a highlight. Making it all up as we go, we now have a well oiled routine for working the databases, dispatching the packs and shirts, doing the data entry in a timely manner, reporting on “raw data” and generating monthly reports and invoices.
- Reading John Holdsworth’s output and recommendations. Knowing that we are being served by a man who really knows his stuff and how to present it.
- Ross Gildon’s incredible record of kahawai (mis)management and process over so many years – meticulously maintained and of immeasurable value.
- Mark Feldman’s articles and letters to the editor – his willingness to write it all out again and again.
- James Bullock of Hesketh Henry – delivery of stunning document management strategy and presentation thereof at the last Legal team meeting. His (and Stuart and David’s) grasp of the heart, the essence and the tikanga of the issues at stake offers real comfort.
