Akaroa Marine Protection Society Incorporated v The Minister of Conservation

• Jurisdiction: New Zealand
• Judge: Whata J
• Judgment Date: 08 May 2012
• Neutral Citation: [2012] NZHC 933
• Docket Number: CIV 2010-409-002970
• Court: High Court
• Date: 08 May 2012

Between

Akaroa Marine Protection Society Incorporated

Applicant

and

The Minister of Conservation

Respondent

[2012] NZHC 933

CIV 2010-409-002970

IN THE HIGH COURT OF NEW ZEALAND

CHRISTCHURCH REGISTRY

Application for judicial review of Minister of Conservation's decision to decline an application for a marine reserve at the entry to Akaroa Harbour on the basis a reserve would unduly interfere with or adversely affect existing recreational fishing under s5(6)(d) Marine Reserve Act 1971 (upholding of objections — undue interference or adverse effect on existing recreational usage of area) — whether Minister erroneously failed to assess wider merits of application including benefits in areas outside proposed reserve area — whether there had been sufficiently reliable information for Minister to be satisfied as to undue interference/adverse effects — whether Minister should have considered alternative options for reserve — if relief granted, whether Court could instruct Minister to seek further reports and information.

Counsel:

R B Enright and R Makgill for Applicant

U R Jagose and A Camaivuna for Respondent

JUDGMENT OF Whata J

Table of Contents

Introduction	[1]
The Minister's power and duties	[2]
Background	[4]
The Director-General's report	[11]
The Minister's decision	[17]
Minister's evidence	[24]
The issues	[26]
Case for the Society	[28]
Case for Minister	[34]
Principles of review	[39]
Scheme of Marine Reserves Act 1971	[40]
Scope of inquiry	[50]
Adequate information?	[64]
Alternatives	[68]
Relief	[70]
Result	[79]
Costs	[82]

Introduction

1 Akaroa Harbour Marine Protection Society Inc (‘the Society’) made an application seeking a marine reserve in the vicinity of Dan Rogers' Bluff, Akaroa Harbour. The Minister of Conservation declined that application on the basis that the reserve would unduly interfere with or adversely affect existing recreational fishing. The Society's main complaint is that the Minister erred by failing to weigh the effects on recreational fishing against the full merits of the proposed reserve. The Society's other major complaint is that the Minister failed to be satisfied on the basis of sufficient information about key matters, including the effects on existing recreational usages. These failures are said to be compounded by the Minister's apparent failure to consider alternatives or refinements to the proposed marine reserve that might accommodate concerns about recreational fishing.

The Minister's power and duties

2 The Minister's power to consider a marine reserve application is set out at s 5(6) and 5(9) of the Marine Reserves Act 1971. Most relevantly, s 5(6) dealing with objections records:

5 Procedure for declaring a marine reserve

…

(6) … the Minister shall before considering the application, decide whether or not an objection is upheld and, in doing so shall take into consideration any answer of the applicant… and shall uphold the objection if he is satisfied that declaring the area a marine reserve would—

…

(d) Interfere unduly with or adversely affect any existing usage of the area for recreational purposes:

3 Section 5(9) then provides that if no objection is upheld, the Minister may, if the Ministers of Transport and Fisheries concur, recommend that the area under application be declared a marine reserve if the Minister is of the opinion that:

… a marine reserve will be in the best interests of scientific study and will be for the benefit of the public, and it is expedient that the area should be declared a marine reserve … .

Background

4 In December 1995 the Society made an application for an Order in Council seeking to establish a marine reserve in the Akaroa Harbour covering approximately 530 hectares or approximately 12% of the harbour area. The Marine Reserve application covers an area adjacent to the Dan Rogers' cliffs near the entrance to the harbour.

5 As set out in a report produced by the Director-General of Conservation, the area is notable for spectacular volcanic cliffs, sea caves and sea stacks. The underwater topography consists of cliffs and bluffs falling vertically to the seabed and colonised by a rich diversity of plant and animal communities. At the base of Dan Rogers bluff, there are huge room-sized boulders that provide spectacular underwater scenery and habitat for different types of marine communities that are typical of parts of the exposed Banks Peninsula coastal environment. Sub-tidal communities comprise a colourful mosaic of species including giant bull kelp beds, green mussels, sea tulips, hydroids, sponges, sea squirts and sea anemones. The seabed supports populations of horse mussels, encrusting sponges, sea squirts, red algae, cushion, snake and biscuit stars; and a variety of tubeworms, molluscs and bivalves. The reef around Gateway Point supports an extremely rich and diverse fauna and flora, with at least 10% of the benthic species found in this area being ‘undescribed’. The area also supports a diverse array of southern New Zealand fish species, including both rocky-reef fish and inshore pelagic fish, some of which have commercial value.

6 The application was preceded by consultation in the early 1990s carried out with representatives of Ngai Tahu, Te Runaka o Onuku, the Ministry of Fisheries, the Ministry of Transport, the general public, commercial and recreational users and stakeholder groups.

7 The formal application was publicly notified in January 1996. A total of 3,043 submissions were received. These included a total of 709 objections and 2,334 submissions in support.

8 In April 1996 the applicant lodged a response to the objections and on 10 September 1996 the Director-General of Conservation provided a report on the proposed reserve. The report and, it appears the then Minister, viewed the application favourably.

9 The application was then overtaken by other applications, including the Pohatu Marine Reserve (“PMR”) application lodged on 18 January 1997 and the Akaroa Taiapure application. The PMR at Flea Bay was gazetted in July 1999. But the Taiapure application was, however, subject to a lengthy Taiapure Tribunal process, including an appeal to the High Court, with the result that it was not gazetted until 27 February 2006. Relevantly the Tribunal recommended that the area subject to the Society's application be excluded from the taiapure unless the marine reserve application was declined.

10 In about late 2005 or early 2006 the marine reserve application was finally retriggered. The Minister re-notified the application in May 2006 calling for updated and new submissions. A total of 77 submissions were received.

The Director-General's report

11 The Director-General produced a second report in October 2009. On the specific issue of whether the proposed reserve would interfere unduly with or adversely affect any existing usage of the area for recreational purposes, the report sets the frame for analysis in the following terms:

211. … it is necessary to establish the existing recreational usages of the area proposed for the marine reserve; assess the extent to which a marine reserve would diminish any of those uses on both a qualitative and quantitative approach; further assess the extent to which a marine reserve would enhance those usages on a quantitative and qualitative approach; and then weigh up the detriments (if any) and enhancements (if any). If the enhancements outweigh the detriments, the Minister could conclude that the undue interference/adverse effect tests have not been made out. Conversely, if the detriments outweigh any enhancements, the Minister could conclude that the undue interference and/or adverse effects tests have been made out.

12 The report then details the original objections, the applicant's answers to those objections and the further information obtained in 2006. The report analyses in a reasonably detailed way the level of recreational use. The report then concludes:

262. … that there will be some level of effect through the loss of the area for fishers, particularly for divers and fishers in small vessels targeting blue cod (although not apparently reliably available at legal size) and rock lobster, if the area is made a marine reserve. The weight to be accorded this adverse effect is for the Minister to decide (para 210, pg 42).

13 The report then analyses the information dealing with other forms of recreational use. The report states:

270. All of this information indicates how important this part of the coastline of Akaroa Harbour is for tourism and non-fishing recreational value. This is confirmed by all of the operators rating the area in the highest category as ‘very important’, on a 7-point scale from ‘not important’ to ‘very important’, when asked how important the site is as a feature of their tour.

14 The report then surmises:

274. … It would be fair to say that along with the general trend of marine reserves nationally, visitor numbers would be expected to increase over time and likely contribute to the local economy in some way, as awareness about the reserve grows and other eco-based activities develop.

15 It then observes:

276. A case is made out for the proposition that the establishment of a marine reserve at the location applied for will enhance an already established pattern of non-extractive recreational use. …

16 Overall, the report concludes that there will be some adverse effect on recreational fishing from the establishment of the area as a marine reserve, but also that there are likely to be counter-balancing enhancements to recreation within the marine reserve through increased use of the area for other recreational activities. The options available to the Minister are then said to include:

280. …

(a)...