The Court of Appeal has clarified the scope of the jurisdiction of regional councils when undertaking functions in respect of the coastal marine area, and the relationship between the RMA and the Fisheries Act 1996 (Fisheries Act). This case was an appeal from a decision of Whata J, holding that section 30(2) of the RMA does not prohibit a council from acting to maintain indigenous biodiversity (in accordance with section 30(1) (ga)) in the coastal marine area if it acts for the purpose of protecting indigenous biodiversity, and only to the extent strictly necessary to perform that function.
In this case, the Bay of Plenty Regional Council has agreed to protect indigenous biodiversity in three areas of outstanding natural character in the Motiti coastal marine area. The Council proposes to prohibit the removal, damage or destruction of any flora and fauna, which would include restricting fishing. The general question before the Court was 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. The position has conventionally been that fisheries resources are regulated solely under the Fisheries Act.
The RMA gives regional councils several functions relating to the coastal marine area. Under section 30(1) (d)(i), (ii), (vii) the functions of regional councils and the Minister in the coastal marine area include control of land and associated natural and physical resources, the occupation of space in and extraction of natural materials from the coastal marine area, and activities in relation to the surface of water. However, regional councils and the Minister of Conservation ‘must not perform’ these functions ‘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’, as provided by section 30(2) of the RMA. The RMA also gives regional councils, in section 30(1)(ga), the function of establishing, implementing and reviewing objectives, policies and methods for maintaining indigenous biological diversity in their regions. It is not expressly subject to the jurisdictional limit in section 30(2).
The Fisheries Act correspondingly provides that no provision of a regional plan is enforceable to the extent that it provides for the allocation of access to any fisheries resources in the coastal marine area to one or more fishing sectors in preference to any other fishing sector (section 6). The Court observed that the relevant provisions of the two statutes pursue different, overlapping objectives: section 30(1)(ga) is concerned with protecting indigenous biodiversity, the Fisheries Act is concerned with sustainable utilisation of fisheries resources (set out in full in section 8 the Fisheries Act). However, the two statutes ‘look at’ each other, and are intended to complement each other. The regulatory overlap is a deliberate choice by the legislature.
The Court held that the effect of section 30(2) is that a regional council may control fisheries resources in the exercise of its section 30 functions including the listed section 30(1)(d) functions, provided it does not do so to manage those resources for Fisheries Act purposes.
There is some uncertainty as to how a council is to decide when a control implemented under section 30(1) (d) will contravene section 30(2). The Court accepted five indicia that were proposed, which may provide objective guidance:
- Necessity – whether the objective of the control is already being met through measures implemented under the Fisheries Act.
- Type of control – Controls that set catch limits or allocate fisheries resources among fishing sectors or establish sustainability measures for fish stocks would likely amount to fisheries management.
- Scope – a control 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 section 30(2).
The RMA does not specify that the function of maintaining indigenous biodiversity in section 30(1) (ga) is subject to section 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 subsections 30(1)(d)(i), (ii) or (vii) are subject to s 30(2). Section 30(1)(ga) policies can be subject to section 30(2) where specified section 30(1)(d) functions are invoked.
This decision will have significant implications. It confirms that regional councils have substantial scope to protect living marine resources through regional coastal plans, where the taking of those resources is otherwise permitted under the Fisheries Act. The overlap of the RMA and Fisheries Act regimes has the potential to fill any gaps that would otherwise exist between the two regimes. There may be increased enforcement costs, and potentially increased compliance costs for the fishing industry. The decision will also have an impact on the recreational fishing sector. The appeal period closes on 2 December.