ATTORNEY-GENERAL v THE TRUSTEES OF THE MOTITI ROHE MOANA TRUST [2018] NZCA 67 [21 March 2018]
Leave to appeal was granted because the Court identified unresolved questions of law about the scope and interaction of s30(2) RMA and the Fisheries Act 1996, specifically whether s30(2) narrowly confines regional councils' regulatory powers in the coastal marine area and how that affects functions to protect Māori...
Source-derived case information.
- Citation
- [2018] NZCA 67
- Parties
- Applicant: ATTORNEY-GENERAL; First Respondent: THE TRUSTEES OF THE MOTITI ROHE MOANA TRUST; Second Respondent: BAY OF PLENTY REGIONAL COUNCIL; Third Respondent: MARLBOROUGH DISTRICT COUNCIL; Fourth Respondent: ROYAL FOREST AND BIRD PROTECTION SOCIETY OF NEW ZEALAND INC; Fifth Respondent: NEW ZEALAND MĀORI COUNCIL; Sixth Respondents: THE NEW ZEALAND ROCK LOBSTER INDUSTRY COUNCIL; FISHERIES INSHORE NEW ZEALAND; THE PAUA INDUSTRY COUNCIL; Seventh Respondents: NGATI MAKINO HERITAGE TRUST; NGATI RANGINUI IWI INCORPORATED; NGATI PIKIAO ENVIRONMENTAL SOCIETY; HOKIANGA COLLECTIVE
- Court
- Court of Appeal
- Jurisdiction
- New Zealand
- Judgment Date
- 21 March 2018
- Procedural Posture
- Appeal / Leave to Appeal Granted
- Outcome
- Leave to appeal granted on specified questions of law; costs reserved
- Legal Topics
- S30(2) RMA, Coastal Marine Area, Indigenous Biodiversity, Māori Values and Interests, Statutory Interpretation, Jurisdictional Limits
Source-derived case record
Summary, issues, holding and outcome
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Parties
ATTORNEY-GENERAL
Applicant
THE TRUSTEES OF THE MOTITI ROHE MOANA TRUST
First Respondent
BAY OF PLENTY REGIONAL COUNCIL
Second Respondent
MARLBOROUGH DISTRICT COUNCIL
Third Respondent
ROYAL FOREST AND BIRD PROTECTION SOCIETY OF NEW ZEALAND INC
Fourth Respondent
NEW ZEALAND MĀORI COUNCIL
Fifth Respondent
THE NEW ZEALAND ROCK LOBSTER INDUSTRY COUNCIL; FISHERIES INSHORE NEW ZEALAND; THE PAUA INDUSTRY COUNCIL
Sixth Respondents
NGATI MAKINO HERITAGE TRUST; NGATI RANGINUI IWI INCORPORATED; NGATI PIKIAO ENVIRONMENTAL SOCIETY; HOKIANGA COLLECTIVE
Seventh Respondents
Procedural Posture
Appeal / Leave to Appeal Granted
Legal Issues
- 1 Whether s30(2) RMA limits regional councils from controlling activity in the coastal marine area only where the purpose is to manage fisheries utilisation or maintain aquatic environment as a fishing resource
- 2 Whether regional councils may exercise all RMA functions to protect Māori values in the coastal marine area provided they are not inconsistent with Fisheries Act 1996 special provisions for Māori interests
- 3 Whether s30(2) prevents a regional council from performing its s30(1)(ga) function to maintain indigenous biodiversity and whether that function may only be exercised if strictly necessary to achieve that purpose
Ratio Decidendi
Leave to appeal was granted because the Court identified unresolved questions of law about the scope and interaction of s30(2) RMA and the Fisheries Act 1996, specifically whether s30(2) narrowly confines regional councils' regulatory powers in the coastal marine area and how that affects functions to protect Māori values and indigenous biodiversity.
Court Disposition
Leave to appeal granted on specified questions of law; costs reserved
Orders
- Leave to appeal granted on the questions of law set out in the judgment (questions (a)–(d))
- Costs reserved pending determination of the substantive appeal
Full Case Text
Judgment text and source record
1 paragraphs
ATTORNEY-GENERAL v THE TRUSTEES OF THE MOTITI ROHE MOANA TRUST [2018] NZCA 67[21 March 2018]IN THE COURT OF APPEAL OF NEW ZEALANDCA408/2017[2018] NZCA 67BETWEEN ATTORNEY-GENERALApplicantAND THE TRUSTEES OF THE MOTITIROHE MOANA TRUSTFirst RespondentBAY OF PLENTY REGIONALCOUNCILSecond RespondentMARLBOROUGH DISTRICTCOUNCILThird RespondentROYAL FOREST AND BIRDPROTECTION SOCIETY OFNEW ZEALAND INCFourth RespondentNEW ZEALAND MĀORI COUNCILFifth RespondentTHE NEW ZEALAND ROCK LOBSTERINDUSTRY COUNCIL, FISHERIESINSHORE NEW ZEALAND AND THEPAUA INDUSTRY COUNCILSixth RespondentsNGATI MAKINO HERITAGE TRUST,NGATI RANGINUI IWIINCORPORATED, NGATI PIKIAOENVIRONMENTAL SOCIETY ANDHOKIANGA COLLECTIVESeventh RespondentsCourt: Winkelmann, Asher and Clifford JJCounsel: J Prebble and N Anderson for ApplicantB OʼCallahan and R B Enright for First RespondentP H Cooney for Second RespondentJ W Maassen for Third RespondentS Gepp and P Anderson for Fourth RespondentR B Enright for Fifth RespondentJ Appleyard and A D W Brent for Sixth RespondentsJ Pou and A Neems for Seventh RespondentsJudgment:(On the papers)21 March 2018 at 3 pmJUDGMENT OF THE COURTA Leave to appeal is granted on the following questions of law:(a) Does s 30(2) of the Resource Management Act 1990 only prevent aregional council from controlling activity in the coastal marine areaif the purpose of those controls is either to manage the utilisation offisheries resources or to maintain the sustainability of the aquaticenvironment as a fishing resource?(b) Can a regional council exercise all of its functions under theResource Management Act concerning the protection of Māorivalues and interests in the coastal marine area provided that theyare not inconsistent with the special provision made for Māoriinterests under the Fisheries Act 1996?(c) To what extent, if any, does s 30(2) of the ResourceManagement Act prevent a regional council from performing itsfunction to maintain indigenous biodiversity under s 30(1)(ga)?In answering this question, is it correct to say that it is onlyappropriate for a regional council to exercise this function if it isstrictly necessary to achieve that purpose?(d) Did the High Court err by setting aside the declaration made bythe Environment Court and should it have made a differentdeclaration?B Costs are reserved pending the determination of the substantive appeal.___________________________________________________________________REASONS OF THE COURT(Given by Asher J)[1] All parties are agreed that it is appropriate to grant leave. The wording of thequestions of law has been agreed following exchanges between the Court and counsel.Solicitors:Crown Law Office, Wellington for ApplicantTu Pono Legal Limited, Rotorua for First and Seventh RespondentsCooney Lees Morgan, Tauranga for Second RespondentCooper Rapley Lawyers, Palmerston North for Third RespondentWoodward Law, Lower Hutt for Fifth RespondentChapman Tripp, Christchurch for Sixth Respondents