'Hugely significant': Court of Appeal rules in controversial Motiti Island decision

Motiti Island, off the Bay of Plenty coast. Photo / File

A controversial decision validating a proposed protected marine area in Bay of Plenty waters has been heralded as "hugely significant" for New Zealand, but not everyone is happy.

Today, the Court of Appeal ruled regional councils control fishing to protect biodiversity, using the Resource Management Act.

The decision stems from a long legal battle where environmental and Motiti Island residents pitted against the Government and fishing representatives.

The heart of the legal battle centred on whether regional councils such as the Bay of Plenty Regional Council could exercise controls on fishing, or whether they were prohibited from doing so by the Fisheries Act, as argued by the fishing industry.

In its decision, the Court of Appeal referred to the regional council introducing the fishing restriction to "protect indigenous biodiversity from the effects of unsustainable fishing activity that has been permitted under the Fisheries Act".

"There is undisputed evidence that overfishing of snapper and crayfish, in particular, has allowed kina to flourish and destroyed kelp forests that nurture other species, leaving near-monocultures that are known as kina barrens."

The decision also stated there were overlaps between the powers of the Minister of Fisheries and the regional council and the minister could have halted fishing in the same areas to protect them, but did not.

In response to the regional council's move, Fishing Industry Parties stated that regional councils had no authority to control fishing to maintain indigenous biodiversity, for to do so was to manage fishing resources controlled under the Fisheries Act, the decision stated.

The Court of Appeal ruled in favour of the regional council.

Forest & Bird have described the decision as "hugely significant".

Russ Hawkins, the owner of Fat Boy Charters, is concerned at a proposal to protect the marine area around Motiti Island. Photo / File

Forest & Bird and the Motiti Rohe Moana Trust defended the case against the inshore fishing industry.

"The Court of Appeal's decision is confirmation that communities have the right to protect their coastal environments from the effects of bad fishing practice," said Forest & Bird counsel Peter Anderson.

"It is very exciting news for everyone with a stake in the health of New Zealand's coastal ecosystems."

Regional council general manager of strategy and science Namouta Poutasi said the decision was great and confirmed: "that so long as it is for the protection of biodiversity, regional councils do have jurisdiction to control the taking of fish".

However, Bay of Plenty MP Todd Muller said he rejected such findings, saying the decision in his view created a "huge issue" for the Bay and Tauranga area.

"I'm very much opposed to the [decision]. I know there will be many, many recreational fishers appalled by it. I don't think it's right."

Muller said fishing people were having their right to fish where they liked, and where they had traditionally gone to, removed by the decision, which he felt needed to come via the Fisheries Act, not the regional council.

Motiti Island residents have fought for a marine protection area around their home to help look after their marine life. Photo / File

Raewyn Ensor has owned Blue Ocean Charters for 34 years.

She told Bay of Plenty times "this [decision] may change the reputation of this area as one of the target regions for fishing and diving both for New Zealanders and people from overseas."

"This could impact tourism in this area potentially affecting a lot of business owners."

In her opinion the area affected was "too big".

"I don't know how they're going to police it."

She said large boats like her's would be able to go out further to fish, but smaller boats would not.

"The trailer boat community will be affected dramatically as Motiti offers protection from the weather. Having to travel further uses more fuel and increases the risks, as the weather conditions tend to be worse the further out you go."

Russ Hawkins from Fat Boys Charters was concerned, and not convinced by the reasons given in the decision.

"If the proposal went ahead there would be a huge backlash."

Hawkins, who is a member of the Mount Ocean Sports Club and Mount Maunganui Underwater Club, said boaties were governed by the weather and fishing near Motiti Island was helpful because of the shelter it gave.

"It's going to create pressure on the remaining areas."

He hoped there would be consultation before any further decisions were made.

The Motiti Protection Area follows the grounding of the Rena in 2011, which prompted its own exclusion zone until this was lifted in 2016. On May 11, 2018, the Environment Court issued an interim decision proposing the Motiti Protection Area, banning the removal of all marine life due to its significant marine biodiversity, landscape and cultural values.

The three areas that make up the protection area comprise of 30 square kilometres and include Ōtaiti (Astrolabe Reef); including Te Papa (Brewis Shoal), Te Porotiti, and O karapu Reef, Motuhaku Island (Schooner Rocks) and Motunau Island (Plate Island).

The trust could not be reached for comment ahead of publication deadline.

Timeline

• In 2014 the Bay of Plenty Regional Council proposed a Regional Coastal Environment Plan including immediate surroundings to Motiti Island and the sacred Tokau and Ōtāiti (Astrolabe) reefs.

• Motiti Rohe Moana Trust, made up of Motiti kaumatua and set up to act on behalf of Nga Hapu o Te Moutere o Motiti, opposed the proposed plan for not complying with principles of the Treaty of Waitangi or engaging with local Māori with connections to Motiti and its waters.

• After the council heard submissions, the trust appealed to the Environment Court. Mediation failed. The council's application to strike out the appeal also failed.

• In 2016 the Environment Court heard the application and found in favour of the trust. However, this was appealed to the High Court where it was found that a regional council was precluded from exercising its functions to manage the use of fisheries resources. However, it was able to exercise its functions to manage effects of fishing not directly related to biological sustainability of the environment as a resource for fishing needs including "matters Māori".

• On May 11, 2018, the Environment Court released an interim judgment banning the damage, destruction or removal of flora and fauna within three marked areas of the Motiti Natural Environment Management Area to be included in the Plan. The court held that the original form did not adequately protect and enhance areas of significant biodiversity within in the region.