IN THE COURT OF APPEAL OF NEW ZEALAND
I TE KŌTI PĪRA O AOTEAROA
CA408/2017
[2019] NZCA 532
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 MĀORI 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
[…]
JUDGMENT OF THE COURT
We answer the questions of law in [81] of this judgment.
[…]
Decision
[81] We answer the questions as follows:
(a) 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. See the discussion at [51]–[67] of the judgment.
(b) 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 s 30(1)(d)(i), (ii) or (viii). It is otherwise not necessary or appropriate to answer the question in this case. See discussion at [68]–[73] of the judgment.
(c) 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 s 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.
See discussion at [60]–[61] and [74]–[76] of the judgment.
(d) 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. See discussion at [77]–[80] of the judgment.
Costs
[82] The answers that we have given result in the Attorney enjoying a degree of success on the appeal. It would not be appropriate to award costs against the Trust, which has also enjoyed some success and deserves credit for taking the action that has led to the BOP Council imposing the controls at issue in this case. The other parties are intervenors. In the circumstances costs will lie where they fall.
[Full judgment: 2019NZCA532.pdf]
