Will councils get the green light to close a fishery near you?

Motiti reef case has wide implications: will your council get the power to close a fishery near you?

Recent court decisions concerning waters around Motiti Island in the Bay of Plenty have surprised the recreational fishing public in general and Legasea in particular by approving the ability for regional councils’ to control fishing under the Resource Management Act. The decisions mean there is potential for councils to close fishing areas in the territorial seas all around New Zealand.

The detail of these court decisions and the actions that the NZ Sports Fishing Council is taking to protect recreational interests is on their website https://www.nzsportfishing.co.nz. In brief this is:

  1. NZSFC has received legal advice that it would be futile to seek to challenge the existing court decisions concerning Motiti. The best approach is to work with the Bay of Plenty Regional Council to monitor the situation and marine environment, while seeking the re-opening of these areas to low impact recreational fishing in due course.
  2. NZSFC has intervened in Environment Court cases in Northland and Taranaki which seek RMA fishing controls over large areas. NZSFC will be staunchly protecting recreational interests in these areas and liaising with local members as these cases move through the Court system.
  3. Regional Council decisions in Marlborough have endorsed benthic protection areas under the RMA, which show how RMA fishing controls could be used to limit the impact of destructive commercial fishing practices. NZSFC consider this is a model which could be adopted in the Northland and Taranaki regions.

In NZSFC/Legasea’s view, resort to the RMA to try to protect marine ecosystems is yet another symptom of a failed quota management system and further evidence of the urgent need for comprehensive reform.

Background – The Motiti Island marine protected area

The shallow reef systems surrounding Motiti Island have long provided kaimoana to locals and the wider public. But over the last 30-40 years there has been a noticeable decline in the marine environment that the reefs support.

In 2018 the Environment Court released an interim decision that found the outstanding attributes and values of these reef systems needed better protection.

The 2018 decision was based on scientific evidence showing that the overfishing of snapper and crayfish has allowed kina to flourish which in turn are destroying the kelp forests that nurture other species. The Court indicated that the wider Motiti Natural Environment Management Area would require further scientific evidence before any additional controls could be considered. The decision also indicated that the Resource Management Act (RMA) was the appropriate legislation for this to happen under, with the Bay of Plenty Regional Council responsible for implementing this legislation in the Bay through its Regional Coastal Environment Plan.

The 2018 interim decision proposed three protection areas be introduced around Motiti Island where the taking of all plants and animals (including fish and shellfish) would be prohibited due to their significant marine biodiversity, landscape and cultural values.

Those three areas comprise some 63.5 square kilometres and include Otaiti (Astrolabe Reef); including Te Papa (Brewis Shoal), Te Porotiti, and O karapu Reef, Motuhaku Island (Schooner Rocks) and Motunau Island (Plate Island). The use of the RMA to protect a marine environment, rather than the Fisheries Act was eventually debated in the High Court and later the Court of Appeal. The Court of Appeal released its landmark decisions on this on 4 November 2019, decisions that clarify the ability of regional councils to manage indigenous biodiversity.

In summary the Court found:

  • Regional Council can include rules in its Regional Coastal Environment Plan to manage the effects of fishing if it is for the purpose of maintaining indigenous biodiversity or other resource management purposes where there is evidence of adverse effects on values from fishing;
  • The ability of Council to apply controls is based solely on the maintaining of indigenous biodiversity; and
  • In maintaining indigenous biodiversity, an objective assessment is required that includes consideration of necessity, type, scope, scale and location.

To meet these conditions research, along with consultation with mana whenua, and a public plan process would likely be required.

Once the Bay of Plenty Regional Council receives the final Environment Court decision early this year it will need to amend the Regional Coastal Environment Plan as per the court’s instructions, which would then be sent to the Minister of Conservation for approval, and to make the rules operative and enforceable.

If the Motiti protection areas are put in place by the courts, then the first opportunity for the public to influence the new rules would be when the Regional Coastal Environment Plan is next reviewed in 2029.

The shallow reefs and rocky outcrops off Motiti are really highly-valued by fishers. If the changes go ahead many will be affected by them.

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