Attorney-General v The Trustees of The Motiti Rohe Moana Trust and Others

• Jurisdiction: New Zealand
• Judge: Miller J
• Judgment Date: 04 November 2019
• Neutral Citation: [2019] NZCA 532
• Court: Court of Appeal
• Docket Number: CA408/2017
• Date: 04 November 2019

Between

Attorney-General

Appellant

and

The Trustees of the Motiti Rohe Moana Trust

First Respondent

Bay of Plenty Regional Council

Second Respondent

Marlborough District Council

Third Respondent

Royal Forest and Bird Protection Society of New Zealand Incorporated

Fourth Respondent

New Zealand Maori Council

Fifth Respondent

The NZ Rock Lobster Industry Council, Fisheries Inshore New Zealand and the Paua Industry Council

Sixth Respondents

Ngati Makino Heritage Trust, Ngati Ranginui IWI Incorporated, Maketu Taiapure Committee, Ngati Pikiao Environmental Society and the Management Committee of the Hokianga O Nga Whanau Hapu Collective

Seventh Respondents

[2019] NZCA 532

Court:

Miller, Collins and Wild JJ

CA408/2017

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

Environment, Statutory Interpretation — whether regional councils could prohibit fishing in specified parts of the coastal marine area to maintain indigenous biodiversity under the Resource Management Act 1991 when the biodiversity concerned included fish species which was separately regulated under the Fisheries Act 1996 for a different purpose

Counsel:

N C Anderson and S J Jensen for Appellant

B O'Callahan and R B Enright for First Respondent

M H Hill and R M Boyte for Second Respondent

J W Maassen and B D Mead for Third Respondent

S R Gepp and P D Anderson for Fourth Respondent

R B Enright for Fifth Respondent

J M Appleyard and A Hill for Sixth Respondents

J M Pou for Seventh Respondents

We answer the questions of law in [81] of this judgment.

JUDGMENT OF THE COURT

REASONS OF THE COURT

(Given by Miller J )

Table of Contents

Introduction	[1]
The appeal	[10]
The circumstances leading to the appeal	[13]
The Crown position throughout proceedings	[24]
Our approach to the issues	[26]
The functions and powers of regional councils in the coastal marine area	[27]
The New Zealand Coastal Policy Statement (NZCPS)	[38]
New Zealand's international obligation to protect indigenous biodiversity	[40]
Indigenous biodiversity and the Fisheries Act	[43]
Question One: Does s 30(2) of the RMA only prevent a regional council from controlling activity in the coastal marine area if the purpose of those controls is either to manage the utilisation of fisheries resources or to maintain the sustainability of the aquatic environment as a fishing resource?	[51]
The two statutes pursue different objectives	[52]
Maintenance of indigenous biodiversity was deliberately assigned to regional councils	[53]
The two statutes “look at” each other	[56]
Maintaining indigenous biodiversity is a discrete function	[59]
In this case maintaining indigenous biodiversity engages other council functions	[60]
The objective of the prohibition in s 30(2)	[63]
Regional council functions in practice	[64]
Duplication of function and institutional competence	[66]
Conclusion: a regional council may perform its s 30 functions in the coastal marine area provided it does not act for Fisheries Act purposes	[67]
Question Two: Can a regional council exercise all of its functions under the RMA concerning the protection of Maori values and interests in the coastal marine area provided that they are not inconsistent with the special provision made for Maori interests under the Fisheries Act?	[68]
Question Three: To what extent, if any, does s 30(2) of the RMA prevent a regional council from performing its function to maintain indigenous biodiversity under s 30(1)(ga)? In answering this question, is it correct to say that it is only appropriate for a regional council to exercise this function if it is strictly necessary to achieve that purpose?	[74]
Question Four: Did the High Court err by setting aside the declaration made by the Environment Court and should it have made a different declaration?	[77]
Decision	[81]
Costs	[82]

Introduction

1 The general question before us is whether regional councils may prohibit fishing in specified parts of the coastal marine area to maintain indigenous biodiversity when the biodiversity concerned includes fish species the taking of which is separately regulated under fisheries legislation for a different purpose: their sustainable utilisation.

2 This is a question of law. It arises in the following way. The Resource Management Act 1991 (RMA) assigns to regional councils, in conjunction with the Minister of Conservation, a number of functions to do with the coastal marine area, which covers the area between mean high water springs and the outer limits of the territorial sea. 1 The councils exercise control through regional plans that incorporate objectives and policies promulgated in a coastal policy statement issued by the Minister. 2 Under s 30(1)(d) the functions of regional councils and the Minister in the coastal marine area include control of (i) land and associated natural and physical resources, (ii) the occupation of space in and extraction of natural materials from the coastal marine area, and (vii) activities in relation to the surface of water.

3 However, there is an express limit to the power conferred. It yields in some circumstances to fisheries legislation. A regional council and the Minister of Conservation “must not perform” the three s 30(1)(d) functions just listed “to control the taking, allocation or enhancement of fisheries resources for the purpose of managing fishing or fisheries resources controlled under the Fisheries Act 1996”. So provides s 30(2) of the RMA.

4 The RMA also assigns to regional councils, in s 30(1)(ga), the function of establishing, implementing and reviewing objectives, policies and methods for maintaining indigenous biological diversity in their regions. That function extends to the coastal marine area. It is not among those expressly subject to the jurisdictional limit in s 30(2).

5 The circumstances that led to the appeal indicate that it is a matter of no small importance. The Bay of Plenty Regional Council (“the BOP Council” or “the Council”) has agreed to prohibit fishing in three areas of outstanding natural character; Otaiti (including Te Papa, Te Porotiti and Okaparu reefs), Motunau Island, and Motuhaku Island. The Council accepts that it will thereby exercise its control of land and resources in the coastal marine area. 3 It is acting to protect indigenous biodiversity from the effects of unsustainable fishing activity that has been permitted under the Fisheries Act. There is undisputed evidence that overfishing of snapper and crayfish, in particular, has allowed kina to flourish and destroy kelp forests that nurture other species, leaving near-monocultures that are known as kina barrens.

6 There is much overlap between the power that the Council claims to control resource use in the coastal marine area and the powers of the Minister of Fisheries under the Fisheries Act. Snapper and crayfish are among fisheries resources controlled under the Fisheries Act. The Minister of Fisheries might have halted fishing in the same areas to protect them and the aquatic environment, but did not.

7 Supported by the Attorney-General, the Council contends that its jurisdiction over fishing resources that are controlled under the Fisheries Act is ultimately defined not by subject matter or effect but according to the purpose for which it acts. It says

it may prohibit fishing in specified parts of the coastal marine area so long as its purpose is that of maintaining indigenous biodiversity rather than that of managing fishing for the Fisheries Act objective of sustainable utilisation. This is to accept that the prohibition in s 30(2) can apply when the Council acts to maintain indigenous biodiversity. But the Council contends that it may intervene so long as it does not do so for a Fisheries Act purpose

8 The Fishing Industry Parties (the collective sixth respondents) respond that regional councils have no authority to control fishing to maintain indigenous biodiversity, for to do so is to manage fishing resources controlled under the Fisheries Act. It matters not that a council's ultimate purpose in prohibiting fishing may be that of maintaining indigenous biodiversity rather than achieving sustainable utilisation: the power to intervene rests with the Minister of Fisheries alone. It has been exercised often in the past to protect the aquatic environment, and it could have been exercised here. They say that if the Attorney and other respondents are correct, regulatory control over fisheries will be duplicated, regional councils will perform fisheries management functions for which they lack institutional competence, and jurisdictional disputes will proliferate.

9 Other interested parties, who include the Motiti Rohe Moana Trust (the Trust) and Marlborough District Council, promote a wider interpretation of a regional council's powers, saying that the function of protecting indigenous biodiversity is not subject to the prohibition in s 30(2) and a regional council need not exercise particular restraint when performing that function in the coastal marine area. Rather, the RMA and Fisheries Act are complementary, each serving in different ways to protect the environment.

The appeal

10 This is an appeal by leave on four questions of law 4 from a judgment of Whata J holding that s 30(2) does not prohibit the Council from acting to maintain indigenous biodiversity in the coastal marine area if it acts a) for the purpose of protecting indigenous biodiversity and b) only to the extent strictly necessary to

perform that function. 5 The Judge added the “strictly necessary” qualification because he reasoned that the Fisheries Act regime prevails where there is conflict, since it specifically addresses “the utilisation of fisheries resources” and “the...