Resource Management Act > Auckland Council

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    Posted: 20 Jan 2017 at 3:59pm
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On 20 January 2017 at 07:07, Rahui Motiti Rohemoana <[email protected]> wrote:
Kia ora Wayne,

Good to catch up on the phone last week, we received a notice of appeal to the declaration on monday and have be working hard to assess the situation. 

As I mentioned when we spoke this is about local community empowerment to effect marine protection of habitat and biodiversity thus providing homes for the future fish.

It is important that our community maintains its connection in a way that is empathetic and compassionate to the environment and other users. 

Fundamentally the councils have a duty to protect these values in the marine space however for this to occur we need to encourage regional authorities to act for the interest of preserving the resource for the betterment of our community connection.

I am preparing a tool box for marine protection that is inclusive all levels and mechanisms within the Fisheries Act, RMA, Marine reserves Act and Marine mammals Protection Act. These tools are here now for our community to start the process. 

The merits of each regional approach will need to be defined by the respective guardian groups that have the relationship with those marine resources. 

Look forward to catching up and discussing this further when you are free.

Kia kaha kaitiaki rangatira,

Regards,
Te Atarangi   


Case Law
December 14, 2016
CASE LAW

Motiti Rohe Moana Trust v Bay of Plenty Regional Council [2016] NZEnvC 240
Case Law
Author: Sally Gepp, Forest & Bird
Number: NZEnvC 240
Court: Environment Court
Party: Motiti Rohe Moana Trust v Bay of Plenty Regional Council
Environment Court confirms regional councils can control fishing for resource management purposes 
 
Following the Rena grounding in 2011, a navigation exclusion zone was put in place around the Otaiti (Astrolabe) Reef. The exclusion zone gave legal effect to calls for a rahui over the site. With fishing pressure around the reef removed, marine life flourished.
In the face of the imminent uplifting of the exclusion zone at the start of this year, Motiti Rohe Moana Trust sought a temporary closure under the Fisheries Act, to give effect to the purpose of the rahui and customary management practices, particularly to improve depleted fish stocks and allow taonga species to recover. The exclusion zone was uplifted in April 2016, with no response to the temporary closure request forthcoming from the Minister of Primary Industries. Since the uplifting, the Trust reports that heavy fishing has again stripped the reef of key species.
The Trust has also consistently advocated for marine spatial planning to protect and restore the moana surrounding Motiti Island, including through its submission and appeal of the Bay of Plenty Regional Coastal Environment Plan.
That is the context for the Trust’s recent application for a declaration relating to controls on fishing-related activities in regional plans. The declaration applied for was that it is lawful for the Council to include objectives, policies and methods (including rules) in its proposed Regional Coastal Environment Plan, in spatially defined parts of the coastal marine area, that avoid, limit or discourage fishing techniques or methods where the sole or dominant purpose relates to protection of biodiversity, significant habitat, natural character or the relationship of Māori with waters and taonga species.
In a decision released on 5 December, the Court (Judge Smith presiding) made the declaration, confirming that fishing controls are able to be used in regional plans as long as they are for resource management purposes.
The core issue was the interface between the Fisheries Act and the Resource Management Act, and particularly the application of s 30(2) which limits specified fisheries-related controls (at [8]). The Attorney-General joined the proceeding, and was motivated to clarify the interface between the two Acts and avoid plan provisions which offend s 30(2). The Court was satisfied that the Resource Management Act and the Fisheries Act are intended to work in tandem and that both Acts “are aware of, and attentive to, the other” (at [10]), noting the express references to the RMA in the Fisheries Act, and vice versa.
The Court described s 30(2) as “particularly limited” in its effect. It found that there are three preconditions for s 30(2) to apply. To offend s 30(2) a proposed rule would need to:
 be for a function under 30(1)(d)(i), (ii) and (vii); and 
 control the taking, allocation or enhancement of fisheries; and 
 be for the purpose of managing fishing or fishing resources.
It found that s 30(2) may be a matter to be had particular regard to as part of the assessment of the merits of provisions in a plan, rather than a limit on jurisdiction (at [32]).
The first precondition 
Following Property Rights in New Zealand Inc v Manawatu Wanganui Regional Council [2012] NZHC 1272, the Court held that a regional council’s ability to include provisions in its plan to maintain
indigenous biological diversity under s 30(1)(ga) is not exercised through ss 30(1)(d)(i) to (vii), and so is not captured by the first precondition of s 30(2). The intent of s 30(1)(ga) “is to undertake a broader assessment and to enable objectives, policies and methods to identify indigenous biological diversity issues whether they occur on land, in the coastal marine area or elsewhere” (at [34] – [40]).
In contrast, the Court noted that rules relating to the relationship of Māori with taonga would be made under s 30(1)(d), and so went on to consider the second and third preconditions.
The second precondition 
The Court noted that provisions might be inserted within a plan which may not directly relate to the fishery resource or fishing itself but might nevertheless preclude actions which might have a direct or indirect effect upon fish stocks. Such a provision might amount to taking, allocation or enhancement of fisheries resources (at [47]).
The third precondition 
Objectives and policies that identify areas of significant indigenous biodiversity are not for the purpose of fisheries management (at[49]). “Purpose” does not address the effect of the rule, but rather the intent or objective or reasons for it (at [51]).
The Court firmly rejected the suggestion that significant habitats of indigenous fauna, protected under s 6(c) of the RMA, do not include protection of the fauna within them. There is a complex inter-relationship between fauna, flora and habitat such that habitat must include the fauna within it. This is confirmed by Policy 11 of the NZCPS (at [50]).
Other reasons for controlling fishing that would be for a resource management purpose would include section 6(e), 7(a) and 8 purposes (relating to the relationship of Maori with water and taonga species, the exercise of kaitiakitanga and Treaty principles respectively).
Motiti Rohe Moana Trust is now able to argue for controls on fishing in the region’s coastal marine area. The decision will be of interest to other regional councils, some of whom (such as Marlborough ) are already looking to control some fishing activities in parts of their region’s coastal marine area to protect fragile marine environments. Community groups that are advocating for controls under the Marine Reserves Act or Fisheries Act to protect marine ecosystems may also look to the RMA to achieve similar outcomes.
The decision also comes at an interesting point in time given the imminent RMA amendments which will, if passed, allow the Minister to strike out any rule in a plan where he or she considers that the rules would duplicate, overlap with, or deal with the same subject matter as is included in other legislation and that duplication, overlap, or repetition would be undesirable. The Environment Court’s carefully considered decision may well preclude the Minister reaching a view that there is undesirable duplication or overlap between Fisheries Act controls and regional plan rules controlling fishing for RMA purposes.
 Bookmark.

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I have written to the Auckland Council and awaiting reply...
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If I read this correctly, it seems to suggest that the Motiti Rohe Moana Trust are arguing that they should be given management rights over the coastal area they were historically associated with? The way this reads, you would suspect that the aim is to give their local  community something approaching exclusive access to some (or all?) areas on the basis of some treaty/RMA etc provisions. 

Is that what it is really saying?
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As I understand it, the ruling is that local/regional councils can include biodiversity management in their local plans and therefore effectively create local management areas where different take rules apply. The ruling doesn't specifically link that to Maori rights but says that the Trust involved having gained the ruling that local authorities can act, can now lobby the local council to act in areas they want protection, as could any other interested lobby group. 

However the court decision is being appealed by the Govt as they do not agree that the current law allows local/regional action in this area., so no-one is going to act until that appeal has been heard.
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Anyone could lobby this ,If successful all Council area in NZ could be included if like minded people got together,Its not Just open to Maori but everyone ,but it pay to lobby all races into this as a collective approach ?.

appealed by the Government as they can see the writing on the wall  ..

note >>>>Sections 12(1)(c) and (e) of the RMA state that no person may, in the coastal marine area,

destroy, damage or disturb the foreshore or seabed in a manner that has or is likely to have
an adverse effect on the foreshore or seabed, or on plants or animals or their habitat..

It would appear that Commercial fishing ( trawling and danish seine are illegal

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Also if the govt was to loose the appeal Iwould expect them to change the law pretty quickly to specifically remove local/regional authorities. No way they want a piecemeal, local issues, lobby group driven system for quasi marine reserves.

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your ahead of me now Salty ,hot off the press that hot off the press that was lol.

The Government can see loss of $$$$ from being unable to assist with the destruction of our inshore fisheries in the way they are used to ,I hope it goes against any appeal By Government...

Council I think control out 12nm from land and all Islands  ?

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If I have understood what has been on the news recently surrounding a court ruling, local councils will have the authority/power to implement marine reserves. Dangerous precedence being set here if this was the case, most council can hardly manage their own districts regarding rates, water etc let alone the marine environment. Regardless what people may think of DOC or MPI I do believe that this should be left to central government to oversee.
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tzer...the track record of MPI management could be said to be  equally as bad  ?if Council took control it could be argued to stop bottom contact methods ...

ections 12(1)(c) and (e) of the RMA state that no person may, in the coastal marine area,

destroy, damage or disturb the foreshore or seabed in a manner that has or is likely to have
an adverse effect on the foreshore or seabed, or on plants or animals or their habitat..


besides under seachange proposals something similar is in the making 

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Landmark legal decision protecting marine environments

Sustainability provisions ignored by MPI

On 16th January 2017 the Attorney General of New Zealand appealed the decision of the Environment Court that allows communities to protect the marine habitat and our fishing grounds from exploitative fishing methods, such as bottom trawling, and seine netting within the territorial waters of the coastline. These methods kill thousands of tonnes of New Zealand marine wildlife which supports our collective culture, customs and recreational well-being.

In November of 2016 the Motiti Rohemoana Trust sought clarification from the Environment Court on the lawfulness of Regional Councils to have consideration of marine biodiversity and habitat which impose controls on fishing methods in regional planning. On 5 December 2016 the Court issued a decision that supported New Zealanders' community connection and confirmed that it is lawful for regional authorities to protect the biodiversity and habitat of the ocean and its resources under the Resource Management Act (RMA).

The Fisheries Act has failed to protect the principles of conservation and the wellbeing of our community to have a connection with fish by promoting the sustained exploitation of the marine environment.

The Motiti Rohemoana Trust is encouraging New Zealanders to write to the Attorney-General Hon Christopher Finlayson and petition their local Members of Parliament to support and uphold the declaration made by the Environment Court for community based marine protection. Please support our 'Give-a-little' campaign to ensure the next generation have a relationship with marine resources.

We cannot sit by and expect someone else to do this we need to start with our community connection with the moana and collectively work together for the future well-being of the coastal marine area.

We need the help of New Zealand to defend our shared community right to stewardship of our marine environment so that our children, grandchildren and mokopuna can have an opportunity to enjoy the ocean.

The Motiti Rohemoana Trust is a kaitiaki purpose Trust set-up by elders, kaumatua and kiua of Motiti Island - small offshore island in the Bay of Plenty. Motiti Rohemoana Trust is working to protect shared New Zealand values.

The Environment Court Declaration in principle was made to provide New Zealand communities with a regional tool that enables a community approach to marine protection in supporting the future of our collective connection with the ocean.

The Ocean is the planet's largest carbon sink and is our shared hope for combating climate change. We must protect the life on this planet by protecting the complex diversity of habitat which supports this life.

Key points:
• Why did we take the declaration?
o MPI failed to address s186A Closure following lifting of Rena exclusion zone
• What does EnvC decision mean to communities?
o Shares responsibility for local fisheries and habitats between Govt and Regional Councils on behalf of local communities - better local decision-making and outcomes
• How do you feel about Govt decision to appeal?
o Unfair and an imposition, especially as Govt removed ELA funding for High Court appeals; therefore MRMT having to seek public support through Give-a-little campaign
• What's wrong with the Fisheries Act?
o Sustainability provisions have been ignored by MPI and the Fisheries Act has failed to do as Parliament intended

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https://www.planning.org.nz/Attachment?Action=Download&Attachment_id=3820
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So, obviously Maori, conspiring with organised environmentalists, are going to take control of the coastal sea. If nothing is done to stop them.
They are campaigning through getting power in local government, then through the courts to try and get local government the power to regulate the sea.
Central government has allowed this to happen. But seems to be opposing it, to some extent; by appealing the recent Environment Court decision on the Motiti/Astrolab reef.
 
There isn't any sign of significant opposition to all this, from the rest of society. Legasea is going along with it - I was going to say "on behalf of recreational fishing", but Legasea is not representative of recreational fishng (at the moment). Legasea doesn't seem to realize how dangerous appeasement is. Maori activists must be laughing at what an easy push-over Legasea has been. Don't they see, Maori want far more than Marine Reserves, that's just window dressing, for total power over the sea.
 
Maori have been using courts to get more power. Legasea needs to do the same. 
 
We still need Legasea - but unless it changes to oppose the threats from maori and environmentalists, we "grass roots" fishers need to become active.

This years government election will decide who wins. If National gets back with maori party support, the same old appeasing policies will mean recreational fishing will lose. If Labour gets in with the Green party, recreational fishing will lose, because Greens want to leave the fish alone, and their policies will reflect this. The only possible way for recreational fishing to win, will be National with NZ First. But I wont be holding my breath, as recreational fishers seem to be extraordinarily apathetic.
 
If the tiny few taking part in discussions on here, is all we can expect, we are bu.....ed. We have to get more so annoyed that they vote differently.    
 
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Originally posted by letsgetem letsgetem wrote:


So, obviously Maori, conspiring with organised environmentalists, are going to take control of the coastal sea. If nothing is done to stop them.
They are campaigning through getting power in local government, then through the courts to try and get local government the power to regulate the sea.
Central government has allowed this to happen. But seems to be opposing it, to some extent; by appealing the recent Environment Court decision on the Motiti/Astrolab reef.
 
There isn't any sign of significant opposition to all this, from the rest of society. Legasea is going along with it - I was going to say "on behalf of recreational fishing", but Legasea is not representative of recreational fishng (at the moment). Legasea doesn't seem to realize how dangerous appeasement is. Maori activists must be laughing at what an easy push-over Legasea has been. Don't they see, Maori want far more than Marine Reserves, that's just window dressing, for total power over the sea.
 
Maori have been using courts to get more power. Legasea needs to do the same. 
 
We still need Legasea - but unless it changes to oppose the threats from maori and environmentalists, we "grass roots" fishers need to become active.

This years government election will decide who wins. If National gets back with maori party support, the same old appeasing policies will mean recreational fishing will lose. If Labour gets in with the Green party, recreational fishing will lose, because Greens want to leave the fish alone, and their policies will reflect this. The only possible way for recreational fishing to win, will be National with NZ First. But I wont be holding my breath, as recreational fishers seem to be extraordinarily apathetic.
 
If the tiny few taking part in discussions on here, is all we can expect, we are bu.....ed. We have to get more so annoyed that they vote differently.    
 


People said this would happen when National repealed Labours Foreshore and Seabed legislation. An agreement that was done behind closed doors before the election with the Maori Party for its continued support. Did National listen? No. They were warned, yet went ahead anyway. How unusual. We are seeing the results now.
It is only going to get worse. Fresh water control/ownership is still being discussed behind closed doors and New Zealanders of Maori descent are using the "partnership" lie to gain control. What chance does the public have if they have no idea what is happening? Just as they are doing with the Seachange program. Not only do we need the public to say enough, we need Politicians with a little courage who care more about the country than their careers to stand up to the racial bullying. The Waitangi Tribunal which is the biggest tool in the "partnership" lie needs to be disbanded immediately before it can do more damage.
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I am pretty sure I heard the other day that the BOP Regional Council may also be appealing this decision as they do not want to have this ability to set management rules as set out in the decision.
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