Attorney-General v Trustees of the Motiti Rohe Moana Trust

[2018] NZCA 67

IN THE COURT OF APPEAL OF NEW ZEALAND

CA408/2017
[2018] NZCA 67

BETWEEN

ATTORNEY-GENERAL
Applicant

AND

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 AND THE PAUA INDUSTRY COUNCIL
Sixth Respondents

NGATI MAKINO HERITAGE TRUST, NGATI RANGINUI IWI INCORPORATED, NGATI PIKIAO ENVIRONMENTAL SOCIETY AND HOKIANGA COLLECTIVE
Seventh Respondents

Court:

Winkelmann, Asher and Clifford JJ

Counsel:

J Prebble and N Anderson for Applicant
B OʼCallahan and R B Enright for First Respondent
P H Cooney for Second Respondent
J W Maassen for Third Respondent
S Gepp and P Anderson for Fourth Respondent
R B Enright for Fifth Respondent
J Appleyard and A D W Brent for Sixth Respondents
J Pou and A Neems for Seventh Respondents

Judgment:

(On the papers)

21 March 2018 at 3 pm

JUDGMENT OF THE COURT

ALeave to appeal is granted on the following questions of law:

(a)Does s 30(2) of the Resource Management Act 1990 only prevent a regional council from controlling activity in the coastal marine area if the purpose of those controls is either to manage the utilisation of fisheries resources or to maintain the sustainability of the aquatic environment as a fishing resource?

(b)Can a regional council exercise all of its functions under the Resource Management Act 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 1996?

(c)To what extent, if any, does s 30(2) of the Resource Management Act prevent a regional council from performing its function to maintain indigenous biodiversity under s 30(1)(ga)? In answering this question, is it correct to say that it is only appropriate for a regional council to exercise this function if it is strictly necessary to achieve that purpose?

(d)Did the High Court err by setting aside the declaration made by the Environment Court and should it have made a different declaration?

BCosts are reserved pending the determination of the substantive appeal.

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REASONS OF THE COURT

(Given by Asher J)

1. All parties are agreed that it is appropriate to grant leave.  The wording of the questions of law has been agreed following exchanges between the Court and counsel. 

Solicitors:
Crown Law Office, Wellington for Applicant
Tu Pono Legal Limited, Rotorua for First and Seventh Respondents
Cooney Lees Morgan, Tauranga for Second Respondent
Cooper Rapley Lawyers, Palmerston North for Third Respondent
Woodward Law, Lower Hutt for Fifth Respondent
Chapman Tripp, Christchurch for Sixth Respondents