IN THE COURT OF APPEAL OF TONGA				
CIVIL JURISDICTION							
NUKU’ALOFA REGISTRY

AC 22 of 2024
[CV 30 of 2024]

BETWEEN 		
SETIMA HANIF
First Appellant

AND
BELUGA DIVING LTD
Second Appellant

AND			
SHANE WALKER
Third Appellant

AND			
VAVA’U GAME FISHING CHARTERS LTD
Fourth Appellant

AND	
DIANE CLARKE
Fifth Appellant

AND			
TONGAN EXPEDITIONS LTD
Sixth Appellant

AND 		
MOHAMMED HANIF
Seventh Appellant

AND 			
DOLPHIN PACIFIC DIVING LTD
Eighth Appellant

AND			
SOUTH PACIFIC SEA ADVENTURES LTD
Ninth Appellant

AND			
WHALE WATCH VAVA’U LTD
Tenth Appellant

AND			
COCOKARA BEACH LTD
Eleventh Appellant

AND			
TREASURE ISLAND RESORT LTD
Twelfth Appellant

AND 			
THE MINISTER OF TOURISM
First Respondent

AND			
THE MINISTRY OF TOURISM
Second Respondent

Hearing:		
8 May 2025

Court:			
Randerson, Harrison and Morrison JJ

Counsel:		
David Garrett SC for the Appellants
Sione Sisifa SC Solicitor-General, for the Respondents (abiding)

Judgment:		
16 May 2025

JUDGMENT OF THE COURT

Background
[1]	The appellants hold licences issued by the Minister of Tourism to operate whale watching or swimming with whales activities in the tourist destination of Vava’u.  The season for such tours runs from July to October when humpback whales come to the waters of Vava’u to breed.
[2]	Whale watching activities began about 1993 in Tonga and have become increasingly popular since then both in Vava’u and elsewhere in the Kingdom of Tonga.  The industry is now governed by the Whale Watching and Swimming Act 2008 (the Act) and Whale Watching and Swimming Regulations 2013 (the Regulations).
[3]	Over time, the number of licences issued and vessels operating has increased substantially.  Just prior to the 2024 season, the appellants applied to the Supreme Court for leave to bring judicial review proceedings seeking an order preventing the Minister from issuing further licences for that season and a declaration that any licences issued in Vava’u for the season would be unlawful and invalid.  An order for interim relief was also sought.
[4]	On 27 September 2024, Cooper J issued a decision refusing leave to commence the proceedings and the application for interim relief.  The appellants have appealed the refusal of leave to commence the judicial review proceedings but do not now pursue the refusal of interim relief.  The respondents have informed the Court through counsel, Mr Sisifa, that they take a neutral position in respect of the appeal.  
The judgment below
[5]	Cooper J’s judgment reviews the evidence and his conclusions in two overlapping parts which makes it difficult to succinctly summarise.  However, our analysis of the decision shows that the essential reason for his refusal of the applications was that the applications had no reasonable prospect of success because:
a)	It was not clearly established that the number of licences or instances of non-compliance with the regulations governing the whale watching and swimming activities were causing harm to the whales;
b)	There were no up-to-date studies relating to the impact of the whale watching industry on humpback whales;
c)	The appellants were not seeking a reduction in the number of licences but simply a prohibition on the issue of new ones;
d)	The applications were premature because there was no evidence that the Minister was intending to issue new licences nor the conditions that would be imposed on any such licences if they were issued; and
e)	Relief should not be granted to the appellants when it had been accepted that they, or some of them, were potentially responsible for risking harm to the whales and for non-compliance with the regulations designed to protect them.
Grounds of appeal and our factual analysis
[6]	The primary focus of the appeal advanced by Mr Garrett SC amounted to a challenge to the facts found by the Judge.  We have found it necessary to review the affidavit evidence  ourselves and set out our analysis below. 
[7]	The principal narrative of events was provided by Alistair Coldrick in two affidavits.  Mr Coldrick is the managing director and major shareholder in the eight appellant, Dolphin Pacific Diving Ltd.  He has been working in the industry since 2005 and is currently the President of the Vava’u Whale Watching Operators Association.  His affidavits outline the history and number of licences issued for the Vava’u area and the concerns of the industry about the risk of harm to marine mammal populations. Mr Coldrick also outlines the control measures he considers need to be in place to restrict human contact having harmful impacts on the whale populations which, in turn, could damage or even destroy the industry. 
[8]	 His affidavits attach a number of exhibits including the results of scientific surveys.  His evidence also includes his dealings with officials employed by the Ministry of Tourism to support his contention that the Minister of Tourism has continued to issue licences for tour operators despite advice by his officials that he should not do so.
[9]	We summarise the key documents and events in the form of a chronology:
26 April 2006: Cabinet issued a decision under the Tourist Act 1976 limiting the number of whale watching licences permitted for Vava’u to 13.  The information available suggests that this remained the case at least up until 2009.
5 July 2019: After extensive research in the 2016 and 2017 whale breeding seasons, a comprehensive scientific report by New Zealand and Australian scientists was published.  The report describes the waters around the Kingdom of Tonga as representing one of the most important breeding grounds for Oceania humpback whales. It concluded there was increasing evidence derived from empirical research on “swim-with-cetacean tourism” that the practice of swimming with whales, focussing primarily on mother and calf pairs, can lead to negative effects on the cetaceans involved.  The report contains detailed analysis of whale dive time, the number of re-orientation events, and whale respiration rates in both the absence and presence of boats and swimmers.  Avoidance responses by whales towards tour vessels were found to be significant when approached by the vessels.  Low levels of compliance with the existing regulations were documented: in particular, the stipulated whale resting time between interactions with tour operator vessels and swimmers had been breached. The report concluded that effective strategies were needed to reduce the risk of detrimental effects on the whales targeted by whale watching activities.
The report stated that further investigation was needed about whether the short term behavioural responses observed in Vava’u humpback whales could cause a long term detrimental effect to the population level. Cooper J relied on this but the authors of the report went on to conclude that their findings reinforced the need for a more cautious and effective approach to the management of swimming activities with humpback whales. It recommended a focus on increasing compliance with the existing whale watching regulations, reducing the number of swim with whales-licensed vessels, and introducing a break time in the middle of the day when swimming with whales operations would be prohibited.
(a) 25 February 2020: The then Minister of Tourism issued a Gazette Notice pursuant to reg 5(7) of the Regulations limiting the number of licences to 20 for a period of one year.  As we discuss below this power may be exercised where the Minister believes on reasonable grounds that:
(i)	It is necessary for the management, protection or conservation of whales; and
(ii)	There is a need to sustain the economic viability of the whale watching and whale swimming industry in the Kingdom.
May 2023: The Chief Executive of the Ministry met with members of the Vava’u Whale Watching Association, and it was agreed that no more than 20 licences should be active in 2023.  This was confirmed by an email dated 9 June 2023 following the meeting.
19 July 2023: The Minister issued two new licences and re-issued five other licences which had previously expired.  This increased the total number of licences in Vava’u to 26.
17 May 2024 Report by Dr Orams: Mr Coldrick’s second affidavit exhibited a further report provided by Professor Mark Orams of the AUT University in New Zealand.  Dr Orams was one of the supervising academic scientists for the research conducted by Dr Fiori for his doctoral paper which culminated in the extensive 2019 report discussed above. This report summarised the research findings from the 2019 report and need not be repeated.  Dr Orams stated that the Tongan sub-population of humpback whales was still experiencing a slow recovery after being severely depleted by industrial whaling.  He expressed the opinion that the rapid growth of the swim with whales industry experienced by Vava’u over a short period of time and the focus by tour operators on mother-calf pairs was concerning, especially in light of poor compliance with regulations and the enforcement documented by the 2019 study.  He concluded that the short-term behavioural responses observed in the earlier research could cause a long-term detrimenal effect on Vava’u’s humpback whales and this should be a cause for concern for the Tongan Government, the whale-based tourism industry and other stakeholders.
Dr Orams recommended options for the Tongan Government to consider with the objectives of reducing the total time whales spend in close proximity to vessels and swimmers; reducing the risk of disturbance to whale mother-calf pairs; reducing the risk of human fatality injury and inappropriate swimmer behaviour; increasing compliance with Tongan regulations; and reducing pressure on the whales.  His report also outlined a number of specific management options which included limiting the numbers of whale watch/ swim operators by reducing the number of licences/permits issued.
Dr Orams considered it was imperative that changes be made to more effectively manage whale-based tourism in Vava’u. He stated it was clear that negative effects were occurring and action was needed.  His opinion was that independent and peer reviewed scientific research must be used as a basis for decision-making.
5 August 2024: Mr Coldrick deposed that he had a telephone conversation with Mr Felemi Ika, the Head of Enforcement for whale watching actvities in Tonga.  Mr Ika informed him that both he and the Chief Executive of the Ministry, Mr Viliami Takau, had recommended to the Minister that no new whale watch/swimming licences ought to be issued in Vava’u.
Mr Coldrick later obtained an email dated 30 July 2024 setting out a summary of whale watching and swimming applications and licences in Vava’u as at that date.  It was recommended by Mr Ika that a number of these applications be denied because too many vessels (then numbering 42) were already operating.  In an attachment to the email Mr Ika noted that there were not only too many vessels operating but there were already too many licences issued (a total of 27).  He stated that research was necessary to ensure the wellbeing of whales (both mothers and calves) and to assess the impacts on the industry as a whole to ensure it would be sustainable in the long run.
Mr Coldrick stated that, despite Mr Ika’s recommendations, he understood three new licences had since been issued for whale watching/swimming in Vava’u and that there were an additional nine vessels in Vava’u which he said amounted to an unsustainable increase of over 20% in one year.
Other affidavit evidence relied upon by the appellants
[10]	Naomi Fakatou, an office manager and legal secretary in the firm representing the appellants swore two affidavits on their behalf.  She stated these were authorised by Mr Coldrick for logistical reasons and no issue was taken in that respect.  The first of these affidavits was designed to address a concern raised by the Judge in the Court below about whether avoidance activities by whales confronted with tourism operations were detrimental to the wellbeing of the whales.  Ms Fakatou produced several exhibits that we summarise as follows:
a)	A paper presented to a conference in 2009 entitled “Avoidance of Whale Watching Boats by Humpback Whales in Their Main Breeding Ground in New Caledonia”.  This stated that the combined use of vertical and horizontal avoidance strategies commonly used by many species to avoid predators suggests that the presence of boats represents a major disturbance for humpback whales.
b)	An email dated 3 June 2022, from Mr Ika which included the following statement:
“Again, it is at the discretion of the Honourable Minister and CEO in restricting the number of boats in Vava’u as part of the Ministry’s efforts to minimise the impact of disturbance on marine mammals.  The Ministry have conducted a survey with the Department of Environment and one of the contributing factors to the disturbance in marine mammals and a change in their behaviour is directly related to the number of vessels at sea”.
c)	A letter dated 10 July 2024, from Professor Rochelle Constantine, of the University of Auckland, an extract from which reads: 
“There are many reviews of the impacts of whale watching and the industry practices with a clear narrative amongst the peer-reviewed, published literature that boat-based whale-watch tourism must be considered a persistent, chronic, stressor that can result in biologically meaningful changes in behaviour, survival and reproductive success”. 
Evidence of non-compliance with the Regulations
[11]	Kirsty Bowe is the managing director of Whale Watch Vava’u Ltd.  She has had over 20 years’ experience in the whale watching industry.  She deposed that she was observing breaches of the regulations in Vava’u on a daily basis with boats queuing up on whales, not allowing required rest periods and whales clearly trying to avoid interacting with boats or swimmers.  Due to communication difficulties from Vava’u, Ms Fakatou provided a second affidavit in which she annexed an email from Ms Bowe referring to photographic and video evidence of 16 occasions in July and August 2024 when she had observed breaches of the regulations.  Ms Fakatou deposed that the photos and videos could be provided to the Court if time was allowed to produce them.  In these circumstances, it is surprising that Cooper J was critical in the judgment under appeal of the appellants’ failure to produce this evidence.
Letters before action
[12]	On 27 May 2024, counsel for the appellants wrote to the Minister setting out the concerns of the appellants about the increasing human contact in whale watching activities and the risk that this could damage or even completely destroy a sensitive and valuable industry.  An undertaking was sought from the Minister that there would not be any additional licences issued either that year (2024) or in the short or medium-term future.
[13]	The Minister responded by letter of 7 June 2024.  The Minister emphasised several times his power under reg 5(7) to limit the number of licences and the number of vessels for a specified period of time.  He also referred to his power to temporarily suspend some or all licences under reg 8(3).  The letter concluded by stating:
“Therefore, if the Ministry were to issue additional licences this year, it is entirely a matter for the Minister to consider in his discretion under regulation 5(7).
In addition, the Ministry will consider procuring an independent expert study that is separate from that of Mr Moala-Mafi.  Once the study is completed and reported, the Minister will consider the advice and data available from this study for future decision-making processes.”
Proposed Statement of Claim
[14]	The Amended Statement of Claim relied on by the appellants in the Supreme Court raised three grounds for the application for judicial review:
a)	Error of law alleging that the grant of further licences would be contrary to the purposes of the Act and Regulations and ultra vires accordingly;
b)	Failure to consider relevant considerations including the statutory purpose of the Act and Regulations and the relevant scientific information particularised in the amended pleading; and
c)	The issue of additional licences would be unreasonable in the administrative law sense.
Legal framework of the Act and Regulations
The Act
[15]	The Long Title of the 2008 Act is “to establish licence requirements for the regulating of watching and whale swimming industry and related matters”.  The functions of the Minister are to receive and determine licence applications, to register licences and to provide training courses to service providers.  The Minister is authorised to consider applications and to “determine whether or not to issue such a Licence according to prescribed conditions and any other matter he considers appropriate”.  A licence granted under the legislation shall be made in the prescribed form subject to the conditions contained therein.  The Minister also has the power to suspend or cancel all licences issued under the Act.  Licences shall be for a prescribed period before renewal and are not transferable.  The Act establishes certain offences and also provides that the Minister may, with the consent of Cabinet, make regulations for giving effect to and carrying out the purpose of the Act.
The Regulations
[16]	Regulation 4 provides:
4 	Purpose
The purpose of these Regulations is to provide for: 
(a) 	the management and licensing of commercial services; and 
(b)	the protection, conservation, and management of whales by: 
(i) 	regulating human contact or behaviour with whales either by service providers or other persons, in order to prevent adverse effects on and interference with whales; and 
(ii) 	prescribing appropriate behaviour by service providers and other persons seeking to come into contact with whales.
[17]	The relevant parts of regulation 5 are:
5.	Application for licence
…
(1) 	An application for a licence shall be made in writing to the Minister in the form prescribed in Schedule 1. 
(2)	The Minister upon granting an application under sub-regulation (1) shall issue the licence in the form set out in Schedule 3 and may impose such conditions as he considers proper. 
…
(4)	In considering any application for a licence, the Minister shall have regard to the following: 
(a) 	that the commercial services should not be contrary to the purposes and provisions of the Act and these Regulations;
(b)	whether the commercial services is likely to have any significant adverse effect on the behavioural patterns of the whales to which the application refers, having regard to, among other things, the number and effect of existing commercial services and the applicant’s proposed plan of operation; 
(c)	that it should be in the interest of the conservation, management, or protection of the whales that a licence be issued; 
(d)	whether the applicant, and such of the applicant’s staff who may come into contact with whales, have sufficient experience with whales;
(e)	whether the applicant, and such of the applicant’s staff who may come into contact with whales have sufficient knowledge of the local area and of sea and weather conditions;
(f)	whether the applicant and such of the applicant’s staff who may come into contact with whales have convictions for offences involving mistreatment of animals;
…
(7)	The Minister may, by notice published in the gazette, limit the number of licences, and the number of vessels certified under each licence, granted and issued for a specified period of time where the Minister believes on reasonable grounds that: 
(a) 	it is necessary for the management, protection or conservation of whales; and 
(b)	there is a need to sustain the economic viability of the whale watching and whale swimming industry in the Kingdom.
[18]	A licence under the Regulations is valid for three years and may be renewed upon application.  Regulation 8 provides for the suspension or cancellation of a licence on a number of grounds.  Relevantly, under reg 8 (3):
The Minister may temporarily suspend some or all licences issued under the Act and these Regulations for such period of time as he deems necessary due to: 
(a) 	a major disturbance to the whale population in the Kingdom which has been identified; 
(b)	the poor health of any whale population;
(c)	the serious injury or death of a whale watcher, swimmer or whale or a serious accident involving a vessel certified under licence; or 
(d)	the failure of a licence holder to comply with the terms of the licence, the Act or these Regulations.
[19]	The Regulations also provide  extensive  conditions governing the interaction of people and vessels designed to protect whales from disturbance or harm.  
Judicial review – principles
[20]	In the Kingdom of Tonga, no application may be made for judicial review without the leave of the Court obtained in accordance with Order 39 Rule 2 of the Supreme Court Rules.  Any such application must be made promptly and, in any event, within three months from the date when grounds for the application first arose unless the Court considers there is good reason for extending that period.  Leave must not be granted unless the Court is satisfied that the applicant has a sufficient interest in the matter.  There is no issue about either of these requirements in the present case.
[21]	An application for leave shall be made ex parte by filing the application, a copy of the proposed writ and Statement of Claim and an affidavit verifying the facts relied on.  Order 39 rule 2(3) states the Court may grant the application without a hearing but shall not refuse it without hearing the applicant.  If the Court grants leave, it may do so subject to such terms as to costs and to give security as it thinks fit. The court may also grant such interim relief as appears necessary and just.
[22]	In Rotomould (Pacific) Ltd v Ministry of Meteorology & Anor, the former Lord Chief Justice Michael Whitten KC succinctly summarised the approach adopted by the Court in a leave application:
13.	The Court must be satisfied that there is an arguable case for review. The burden upon the applicant in that regard is not onerous. No in-depth analysis by the court is required. If, on a quick perusal of the material then available, the Court thinks that it discloses what might on further consideration turn out to be an arguable case in favour of granting to the applicant the relief claimed, it ought, in the exercise of a judicial discretion, grant leave to apply for that relief: Public Service Commission v Public Service Tribunal [2019] TOSC 53.
14.	However, the Court will not grant leave where the case is frivolous, vexatious or hopeless.  The purpose of the requirement that leave be obtained is to ensure that an applicant may only proceed to a substantive hearing if the Court is satisfied that there is a case fit for further investigation on a full inter partes hearing: Public Service Association (PSA) v Government of Tonga [2016] TOSC 34 at [10].
Discussion
Factual conclusions
[23]	We have set out the relevant evidence in detail because we are not satisfied that Cooper J’s assessment of the fact is comprehensive, and we consider it to be wrong in some material respects.  We are also of the view that the Judge approached his factual determinations as if he were deciding the matter after a full inter-partes hearing rather than the “quick perusal” discussed above.  That was not appropriate for a leave application.
[24]	Our review of the evidence supports Mr Garrett’s submission that the significant increase in both the number of licences issued and vessels engaged in the whale watching and swimming with whales activities carries a risk of detrimental effects on the whale population.  These risks were comprehensively reviewed by the report of independent scientists in 2019 which concluded that the number of operators and vessels, along with low levels of compliance with the regulations, meant that effective strategies were needed to reduce the risk of detrimental effects on the whales targeted by these activities. 
[25]	The significance of Dr Orams’ evidence appears to have been overlooked.  Cooper J mentioned Dr Orams’ 2024 report only in passing. But it was important evidence confirming and reinforcing the continuing currency of the conclusions reached in the earlier independent report to which he was a contributor.  Dr Orams’ 2024 Report specifically recommended a reduction of the number of licences in order to protect the whales from harm.
[26]	We also consider it is a reasonably available inference on the evidence presented that the impacts on the whales are likely to have increased over time given the significant increases in the number of licences issued and the vessels operating when, according to the expert evidence of Dr Orams, there have been only slow increases in the whale population over the same period. 
[27]	Most importantly, on the basis of the evidence as it currently stands, senior officials of the Ministry of Tourism supported the concerns raised by the appellants and recommended that, for the 2024 season, no new whale watch/swimming licences ought to be issued for Vava’u.  They also supported research being undertaken to ensure the wellbeing of whales (both mothers and calves) including the assessment of the impacts on the industry as a whole to ensure it would be sustainable in the long run.  The Minister referred to the possibility of a study in his letter before the proceedings were issued but said only that it would be considered.
[28]	We are also satisfied that the evidence sufficiently established a significant degree of non-compliance by operators with the relevant regulations in the Vava’u area.  There was adequate evidence before the Judge and the availability of photographic and video evidence was clearly signalled as being available.  If the Judge had concerns with this, it would have been a simple matter to have allowed time for it to be produced formally.
[29]	The Judge was concerned that there was no evidence that the Minister had made any decisions on the applications for licences before him for 2024.  But there was evidence, admittedly based on Mr Coldrick’s then understanding, that at least three new licences had been issued for the 2024 season as well as the authorisation of an additional nine vessels.  The actual outcome was a matter to be explored at a full hearing if leave was granted. We received evidence that an additional five licences have actually been granted,
[30]	Given that factual background we are satisfied that the appellants had established an arguable case for judicial review and that leave should have been granted.  We accept counsel’s submission that:
a)	There are arguable errors of law by the Minister in that, if he were to proceed with the grant of further licences, this would be inconsistent with the evident statutory purpose as expressed in then Regulations.  That is the protection, conservation and management of whales by regulating human contact or behaviour in order to protect adverse effects on and interference with the whales.  This objective is clearly provided for in reg 4. It is strongly emphasised again in the matters to which the Minister must have regard when issuing a licence in reg 5(4) and is supported by the provisions enabling the Minister to limit, suspend or cancel licences to achieve the statutory purpose.
b)	We also consider there may be an arguable error of law on the part of the Minister on the basis of his letter before the issue of proceedings.  Counsel submitted that the Minister appeared to be of the view that his discretion to limit the number of licences and the number of vessels authorised under reg 5(7) is unfettered.  The exercise of this power is not unfettered.  It may only be exercised if the Minister believes on reasonable grounds that both the matters in reg 5(7)(a) and (b) are met.  That is, it is necessary for the management, protection or conservation of whales; and there is a need to sustain the economic viability of the whale watching and whale swimming industry in the Kingdom.  This is a matter to be explored in the context of an inter-partes hearing if leave is granted.
c)	We also accept that the issue of further licences could arguably be challenged on the basis that the Minister failed to consider relevant considerations namely the significant risk of harm to the whale population already discussed; the increase in the number of operators and vessels; the need for further studies; and the advice he has received from officials.
d)	The appellants also rely on unreasonableness in the administrative law sense.  This would provide an alternative arguable case for judicial review but only if a decision to issue further licences was not one the Minister could reasonably make.
[31]	The Judge expressed concerns about factors he viewed as militating against the refusal of the applications on discretionary grounds. In respect of a leave application, taking such factors into account should only occur in exceptional cases and should normally be reserved for consideration on an inter-partes hearing after the grant of leave.  There were no such exceptional circumstances here.  It is different where interim relief is sought.  Under the Supreme Court Rules such relief may only be granted where it is necessary and just. Discretionary matters and the balance of convenience are relevant considerations in that context. Any application for interim relief should be dealt with inter partes after leave to bring review proceedings has been granted. That did not happen here.
Conclusion
[32]	For the reasons we have given, the appeal against the refusal of leave to bring judicial review proceedings must be allowed.   The appeal against the refusal to grant interim relief is not pursued, focussed as it was entirely on the issue of licences for the 2024 season which is now over. 
[33]	The proposed Statement of claim is focussed on the 2024 year and is likely to require amendment for the years beyond 2024. So too any further application for interim relief.  Updating or additional evidence may also be needed. Limited discovery may also be required. The Supreme Court should determine the procedural steps that need to be taken to ensure this matter has a substantive hearing as soon as possible. 
Result
a)	The appeal is allowed and the decision made in the Supreme Court is set aside.
b)	Leave is granted to bring judicial review proceedings against the respondents.
c)	The parties should agree on a suitable timetable but in the absence of agreement, this is to be determined by the Supreme Court as soon as possible.
d)	Since the respondents have taken no part in this matter, there is no order for costs in this Court. 

Randerson J

Harrison J

Morrison J