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Attorney-General v The Trustees of the Motiti Rohe Moana Trust & Ors [2019] NZCA 532

04 November 2019


PDF document icon CA JDG 041119.pdf — PDF document, 715 KB (732298 bytes)


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

Practice and Procedure – Resource Management Act 1991 – Fisheries Act 1996
Statutes – Interpretation
Local Government – Regional Councils – Power
Practice and Procedure – Declarations

In 2014 the Bay of Plenty Regional Council (the Council) proposed a Regional Coastal Environment Plan (the Plan). The area subject to the Plan included the immediate surroundings to Motiti island. The Motiti Rohe Moana Trust (the Trust) opposed the proposed plan and eventually appealed to the Environment Court, and separately sought declarations to the effect that the Council could restrict fishing techniques to preserve the Motiti coastal marine area.

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. Councils exercise control through regional plans that incorporate objectives and policies promulgated in a coastal policy statement issued by the Minister. 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. 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 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” under s 30(2) of the RMA.

The Council has now agreed to protect indigenous biodiversity in three areas of outstanding natural character in the Motiti coastal marine area, a function provided for in s 30(1)(ga) of the RMA, by way of restricting fishing. The question is whether it has the jurisdiction to do so.

Leave was given by the Court of Appeal to answer four questions of law.

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?

The effect of s 30(2) is that a regional council may control fisheries resources in the exercise of its s 30 functions including the listed s 30(1)(d) functions provided it does not do so to manage those resources for Fisheries Act purposes.

Question Two: Can a regional council exercise all of its functions under the RMA concerning the protection of Māori values and interests in the coastal marine area provided that they are not inconsistent with the special provision made for Māori interests under the Fisheries Act?

The control of fisheries under the Fisheries Act extends to provision for taiapure-local and customary fishing, and a regional council may be required to bear that in mind when determining in a particular setting whether s 30(2) precludes the exercise of its functions under subs 30(1)(d)(i), (ii) or (viii). It is otherwise not necessary or appropriate to answer the question in this case.

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?

The RMA does not specify that the function of maintaining indigenous biodiversity in s 30(1)(ga) is subject to s 30(2). It is not the case that a regional council may exercise this function only when strictly necessary when dealing with fisheries resources controlled under the Fisheries Act. But any controls imposed under subs 30(1)(d)(i), (ii) or (vii) are subject to s 30(2). Section 30(1)(ga) policies can be subject to s 30(2) where specified s 30(1)(d) functions are also invoked.

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?

No. Whata J was correct for the reasons he gave. The questions of law have been separated from their factual setting and are expressed in a very general way. It would be difficult to craft declarations that encapsulate the reasons we have given.