The Environment Court has supported banning fishing on Astrolabe Reef and two other popular Bay fishing spots near Motiti Island, saying they had the potential to significantly boost tourism, particularly recreational diving.
Environment Judge Jeff Smith has issued an interim decision on the appeal led by Motiti Rohe Moana Trust against the Bay of Plenty Regional Council's Coastal Plan.
The decision awaits the outcome of the Court of Appeal ruling on whether councils could use the Resource Management Act to control fishing - or whether control should continue to be left to the Ministry for Primary Industries using the Fisheries Act.
Judge Smith's 59-page decision followed a nine-day hearing at Mount Maunganui last year at which the Regional Council defended its plan.
It could result in the protection of all fish and marine plant life in a 30sq km area that included Astrolabe Reef (Otaiti) and the nearby reef structures of Okaparu and Te Papa (Brevis Shoals).
The two other areas where the court sought a prohibition on the damage, destruction and removal of all marine life were Motunau (Plate) Island and Schooner Rocks.
Judge Smith said the opportunity to combine a visit to one of the world's more significant wrecks, the Rena, with the biodiversity viewing opportunities, had in the court's view the potential for significant long-term economic gain for Tauranga.
''We consider that the displacement of commercial and recreational fishing to other areas around Motiti is likely to be minimally affected.''
The three protected areas were within a larger area called the Motiti Natural Environment Management Area. The court ruled that the Coastal Plan should also impose controls on the rest of this area, particularly fishing methods that damaged bottom-living animals and plants, or impacted on sea birds and marine mammals. Recreational and commercial fishing would continue to be allowed.
Judge Smith said it was intended that the three marked areas would be an interim measure while "various bodies seek to adopt an integrated approach to the avoidance of adverse effects ... and that a plan change or other mechanisms may be introduced in due course."
The appeal was partly based on the council admitting that there was a gap in the rules framework to protect indigenous aquatic life in the Motiti Management Area.
Judge Smith said the hearing proceeded on the assumption that the Resource Management Act could still impose controls in limited circumstances.
''There is international and national concern at the ongoing loss of biodiversity (particularly marine) and clear evidence of the interconnection of habitat, flora and fauna.''
The protected areas, including the Rena wreck, could still be accessed by sightseeing divers.
"We consider that the potential of protecting these key areas provides a proper balance, not only in environmental but in cultural terms," he said.
"Overall, we see the adverse effects of protection of the three significant areas as minimal. We consider that the displacement of commercial and recreational fishing is likely to be minimal. In the context of the catchment area for MPI (Ministry for Primary Industries) it is negligible.
"We are satisfied that the displacement of commercial and recreational fishing is so minor as to be regarded as minimal."
The court said the 30sq km represented less than 0.1 per cent of the Bay of Plenty.
Next steps in the Environment Court appeal process:
- Regional Council to draft "appropriate provisions" and circulate by June 25.
- Parties to the appeal have six weeks to respond to the draft provisions.
- Council reports back to the Environment Court four weeks later.
- Court will consider the document and any decision or pending decision from higher courts on jurisdiction.