Can regional plans control the effects of fishing, and if so, how far can these controls go?

The High Court has recently held that regional councils can impose planning controls over fishing in their regional plans under the Resource Management Act 1991 (RMA).  We are yet to see if this decision will be upheld, as we wait for an appeal of the High Court’s finding to be determined by the Court of Appeal.

In the meantime, the Environment Court has released an interim decision that indicates what the scope of regional planning controls over fishing might look like.

In short – the Court approved controls related to fishing methods that may damage the benthic environment or where they impact particularly in sea birds or other marine mammals.

These decisions spark a particular interest among many, as they relate to the Motiti Natural Environment Management Area (MNEA), in the Bay of Plenty, which includes the Astrolabe Reef on which the MV Rena grounded in 2011.

We provide a recap and update on the continuing discussion about fishing controls under the RMA below.

Recap of the High Court decision – regional plans can impose planning controls over fishing

In our December 2017 edition of Envirolink we analysed the High Court’s decision (on appeal from the Environment Court) in Attorney-General v Trustees of the Motiti Rohe Moana Trust [2017] NZHC 1429 and [2017] NZHC 1886.  This case concerned the overlap between the Fisheries Act 1996 (FA) and the Resource Management Act 1991 (RMA) and ultimately whether regional plans can include controls on fishing.

Although the High Court felt it unnecessary to make any declaration, it upheld the reasoning of the Environment Court.  It found that regional councils can impose planning controls over fishing to maintain indigenous biological diversity if the control of fishing is to manage the effects or externalities of fishing on the wider environment that are not already subject to a FA control.  Justice Whata opined that such planning controls might relate to intrinsic values, wāhi tapu, navigation, natural landscape, and non-fishing commercial or recreational activities.

On 21 March 2018, the Court of Appeal granted leave for the Attorney-General to appeal the High Court’s decision (Attorney-General v The Trustees of the Motiti Rohe Moana Trust [2018] NZCA 67).  The Court of Appeal’s substantive decision on this matter is expected late 2018 or early 2019.

Update on the Environment Court decision – what planning controls over fishing might encompass

In the meantime, the Environment Court has released a related interim decision in Motiti Rohe Moana Trust & Ors v Bay of Plenty Regional Council [2018] NZEnvC 067.  The issue in the Environment Court was whether further controls should be included within the Bay of Plenty proposed Regional Council Environment Plan (Proposed Regional Plan) to avoid adverse effects on the outstanding and high values of the MNMA (recognised in both the Proposed Regional Plan and the Regional Policy Statement).

The Court concluded, in an interim basis, that changes to the Regional Coastal Plan would be appropriate.  This included:

  • prohibition of any damage, destruction, removal of flora and fauna within three distinct areas of the MNEMA (surrounding the Astrolabe and Okaparu Reefs and Brewis Shoal; Schooner Rocks and Motunau Island); and
  • the imposition of controls within the balance of the MNEMA, in particular in relation to fishing methods that may damage the benthic environment or where they impact particularly on sea birds or other marine mammals, as part of the investigation and reporting undertaken in accordance with methods set out in the Regional Coastal Plan, taking into account the values already recognised and provided for.

The Court also found that the biodiversity, natural character and cultural values of an area in the coastal marine area is able to be recognised by multiple methods under both the RMA and other legislation.  It noted that it is intended that the three areas (identified in (a) above) are interim measures while various bodies seek to adopt an integrated approach to the avoidance of adverse effects on those values, and that a plan change or other mechanisms may be introduced in due course, either as part of the review process included in the Proposed Regional Plan, or by other bodies in conjunction with the Bay of Plenty Regional Council and other parties.

The Court’s decision is subject to a number of issues being resolved, including the decisions of superior courts including the Court of Appeal (noted above) and the wording of the relevant Proposed Regional Plan provisions being finalised to achieve the decision.

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