Can a regional council prohibit fishing in a specific area?

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Can a regional council prohibit fishing in a specific area?

Can a regional council prohibit fishing in a specific area?

Thursday 12 December, 2019

In Attorney-General v Trustees of the Motiti Rohe Moana Trust [2019] NZCA 532,the Court of Appeal considered whether the Bay of Plenty Regional Council could ban fishing in areas of outstanding natural character in order to maintain indigenous biodiversity of fish species when the Fisheries Act 1996 (“FA”) separately regulates the taking of the particular fish species.

Section 30(1)(ga) of the Resource Management Act 1991 (“RMA”) states that regional councils have the function of establishing, implementing and reviewing objectives, policies, and methods for maintaining indigenous biological diversity in their regions. Section 30(2) expressly prevents the regional council from controlling the taking, allocation or enhancement of fisheries resources for the purpose of managing fishing or fisheries resources controlled under the FA.

Purpose of s 30(1)(ga)

The Court of Appeal held that the RMA and the FA pursued different objectives. Section 30(1)(ga) of the RMA is concerned with protecting indigenous biodiversity, whereas the FA is concerned with “sustainable utilisation of fisheries resources” and only to the extent appropriate to secure future stocks. The RMA objective of protecting indigenous biodiversity is broader in scope: it protects all forms of indigenous organisms and their ecosystems and it protects indigenous biodiversity for its intrinsic value. The Court accepted that the two statutes were intended to complement each other; decisions under one statute may be informed by decisions under the other.

The Court stated that s 30(1)(ga) was enacted to fulfil New Zealand’s obligations under the Convention on Biological Diversity to conserve biological diversity and regulate or manage biological resources for the conservation of biological diversity. The Court found that the legislative history of the statutes confirmed that responsibility for indigenous biodiversity was deliberately assigned to regional councils under the RMA, not established under the Fisheries Act. The Court held that the function of maintaining biodiversity was not subordinated to other regional council functions. It is broader than controlling the use of land, though it can include such controls.

Purpose of s 30(2)

The Court held that the prohibition in section 30(2) RMA was aimed at the FA concepts of managing fishery resources. The purpose was to prevent regional councils usurping the Minister’s sole right to allocate access to fishing resources. In assessing whether a control breaches s 30(2), the Court set out five factors to consider:

Necessity: whether the objective of the control is already being met through FA measures;
The type of control and whether it amounts to fisheries management, such as catch limits;
Scope: controls aimed at indigenous biodiversity is likely not to discriminate among forms or species;
Scale: the larger the scale of the control the more likely it is to amount to fisheries management;
Location: the more specific the location and the more significant its biodiversity values, the less likely it is that a control will contravene s 30(2).

The Court concluded that a regional council might control fisheries resources in the exercise of its section 30 RMA functions, provided the regional council did not act to manage the resource for FA purposes.

Whilst not discussed in this article, the court also looked into:

Whether a regional council can 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.
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)?
Did the High Court err by setting aside the declaration made by the Environment Court?

This decision is a further example of where the courts have been required to determine what role, if any, the RMA has to play in regulating activities that are also controlled by over specialist legislation. In most cases, the courts have held that the RMA complements and works alongside other specialist legislation.

For assistance with questions relating to this article, please contact Bridget Parham