Motiti Rohe Moana Trust v Bay of Plenty Regional Council [2016] NZEnvC 240

Environment Court confirms regional councils can control fishing for resource management purposes

Following the Rena grounding in 2011, a navigation exclusion zone was put in place around the Otaiti (Astrolabe) Reef. The exclusion zone gave legal effect to calls for a rahui over the site. With fishing pressure around the reef removed, marine life flourished.

In the face of the imminent uplifting of the exclusion zone at the start of this year, Motiti Rohe Moana Trust sought a temporary closure under the Fisheries Act, to give effect to the purpose of the rahui and customary management practices, particularly to improve depleted fish stocks and allow taonga species to recover. The exclusion zone was uplifted in April 2016, with no response to the temporary closure request forthcoming from the Minister of Primary Industries. Since the uplifting, the Trust reports that heavy fishing has again stripped the reef of key species.

The Trust has also consistently advocated for marine spatial planning to protect and restore the moana surrounding Motiti Island, including through its submission and appeal of the Bay of Plenty Regional Coastal Environment Plan.

That is the context for the Trust’s recent application for a declaration relating to controls on fishing-related activities in regional plans. The declaration applied for was that it is lawful for the Council to include objectives, policies and methods (including rules) in its proposed Regional Coastal Environment Plan, in spatially defined parts of the coastal marine area, that avoid, limit or discourage fishing techniques or methods where the sole or dominant purpose relates to protection of biodiversity, significant habitat, natural character or the relationship of Māori with waters and taonga species.

In a decision released on 5 December, the Court (Judge Smith presiding) made the declaration, confirming that fishing controls are able to be used in regional plans as long as they are for resource management purposes.

The core issue was the interface between the Fisheries Act and the Resource Management Act, and particularly the application of s 30(2) which limits specified fisheries-related controls (at [8]). The Attorney-General joined the proceeding, and was motivated to clarify the interface between the two Acts and avoid plan provisions which offend s 30(2). The Court was satisfied that the Resource Management Act and the Fisheries Act are intended to work in tandem and that both Acts “are aware of, and attentive to, the other” (at [10]), noting the express references to the RMA in the Fisheries Act, and vice versa.

The Court described s 30(2) as “particularly limited” in its effect. It found that there are three preconditions for s 30(2) to apply. To offend s 30(2) a proposed rule would need to:

 be for a function under 30(1)(d)(i), (ii) and (vii); and

 control the taking, allocation or enhancement of fisheries; and

 be for the purpose of managing fishing or fishing resources.

It found that s 30(2) may be a matter to be had particular regard to as part of the assessment of the merits of provisions in a plan, rather than a limit on jurisdiction (at [32]).

The first precondition

Following Property Rights in New Zealand Inc v Manawatu Wanganui Regional Council [2012] NZHC 1272, the Court held that a regional council’s ability to include provisions in its plan to maintain

indigenous biological diversity under s 30(1)(ga) is not exercised through ss 30(1)(d)(i) to (vii), and so is not captured by the first precondition of s 30(2). The intent of s 30(1)(ga) “is to undertake a broader assessment and to enable objectives, policies and methods to identify indigenous biological diversity issues whether they occur on land, in the coastal marine area or elsewhere” (at [34] – [40]).

In contrast, the Court noted that rules relating to the relationship of Māori with taonga would be made under s 30(1)(d), and so went on to consider the second and third preconditions.

The second precondition

The Court noted that provisions might be inserted within a plan which may not directly relate to the fishery resource or fishing itself but might nevertheless preclude actions which might have a direct or indirect effect upon fish stocks. Such a provision might amount to taking, allocation or enhancement of fisheries resources (at [47]).

The third precondition

Objectives and policies that identify areas of significant indigenous biodiversity are not for the purpose of fisheries management (at[49]). “Purpose” does not address the effect of the rule, but rather the intent or objective or reasons for it (at [51]).

The Court firmly rejected the suggestion that significant habitats of indigenous fauna, protected under s 6(c) of the RMA, do not include protection of the fauna within them. There is a complex inter-relationship between fauna, flora and habitat such that habitat must include the fauna within it. This is confirmed by Policy 11 of the NZCPS (at [50]).

Other reasons for controlling fishing that would be for a resource management purpose would include section 6(e), 7(a) and 8 purposes (relating to the relationship of Maori with water and taonga species, the exercise of kaitiakitanga and Treaty principles respectively).

Motiti Rohe Moana Trust is now able to argue for controls on fishing in the region’s coastal marine area. The decision will be of interest to other regional councils, some of whom (such as Marlborough ) are already looking to control some fishing activities in parts of their region’s coastal marine area to protect fragile marine environments. Community groups that are advocating for controls under the Marine Reserves Act or Fisheries Act to protect marine ecosystems may also look to the RMA to achieve similar outcomes.

The decision also comes at an interesting point in time given the imminent RMA amendments which will, if passed, allow the Minister to strike out any rule in a plan where he or she considers that the rules would duplicate, overlap with, or deal with the same subject matter as is included in other legislation and that duplication, overlap, or repetition would be undesirable. The Environment Court’s carefully considered decision may well preclude the Minister reaching a view that there is undesirable duplication or overlap between Fisheries Act controls and regional plan rules controlling fishing for RMA purposes.