NZAIA
  • Home
    • Environmental Impact Assessment
    • Social Impact Assessment
    • Strategic Environmental Assessment
    • Community & Stakeholder Engagement
    • Management, Monitoring and Reporting
  • About Us
    • Core Group >
      • Core Group Meeting Minutes
    • Our Partners and Affiliates
    • AGMs
    • Ethics
  • Membership
    • Sign Up for NZAIA Membership
  • Conferences
    • Proceedings from Past Conferences >
      • 2022 - Wellbeing, Sustainability and Impact Assessment: towards more integrated policy-making
      • 2021 - Social Impact Assessment >
        • Posters
        • 2021 Students
      • 2019 - Climate Change >
        • Posters
        • 2019 Students
        • Conference Photos
        • Contact List
      • 2018 - Regional Development
      • 2016 - Strategic Environmental Assessment
      • 2015 - Where to for Impact Assessment?
      • 2014 - Transport Infrastructure
      • 2013 Fresh Water Management
      • 2012 - Mineral Extraction
  • Impact Connector
    • Issue #14 Impact assessment for infrastructure development >
      • Impact assessment for infrastructure development - an introduction
      • Place Matters: The importance of geographic assessment of areas of influence in understanding the social effects of large-scale transport investment in Wellington
      • Unplanned Consequences? New Zealand's experiment with urban (un)planning and infrastructure implications
      • Reflections on infrastructure, Town and Country planning and intimations of SIA in the late 1970s and early 1980s
      • SIA guidance for infrastructure and economic development projects
      • Scoping in impact assessments for infrastructure projects: Reflections on South African experiences
      • Impact Assessment for Pacific Island Infrastructure
    • Issue #13 Health impact assessment: practice issues >
      • Introduction to health impact assessment: practice issues
      • International Health Impact Assessment – a personal view
      • Use of Health Impact Assessment to develop climate change adaptation plans for health
      • An integrated approach to assessing health impacts
      • Assessing the health and social impacts of transport policies and projects
      • Whither HIA in New Zealand….or just wither?
    • Issue #12 Risk Assessment: Case Studies and Approaches >
      • Introduction
      • Risk Assessment and Impact Assessment : A perspective from Victoria, Australia
      • The New and Adaptive Paradigm Needed to Manage Rising Coastal Risks
      • Reflections on Using Risk Assessments in Understanding Climate Change Adaptation Needs in Te Taitokerau Northland
      • Values-Based Impact Assessment and Emergency Management
      • Certainty about Communicating Uncertainty: Assessment of Flood Loss and Damage
      • Improving Understanding of Rockfall Geohazard Risk in New Zealand
      • Normalised New Zealand Natural Disaster Insurance Losses: 1968-2019
      • Houston, We Have a Problem - Seamless Integration of Weather and Climate Forecast for Community Resilience
      • Innovating with Online Data to Understand Risk and Impact in a Data Poor Environment
    • Impact Connector #11 Climate Change Mitigation, Adaptation, and Impact Assessment: views from the Pacific >
      • Introduction
      • Climate change adaptation and mitigation, impact assessment, and decision-making: a Pacific perspective
      • Climate adaptation and impact assessment in the Pacific: overview of SPREP-sponsored presentations
      • Land and Sea: Integrated Assessment of the Temaiku Land and Urban Development Project in Kiribati
      • Strategic Environmental Assessment: Rising to the SDG Challenge
      • Coastal Engineering for Climate Change Resilience in Eastern Tongatapu, Tonga
      • Climate-induced Migration in the Pacific: The Role of New Zealand
    • Impact Connector #10 Climate Change Mitigation and Adaptation >
      • Introduction
      • Is a “just transition” possible for Māori?
      • Adapting to Climate Change on Scale: Addressing the Challenge and Understanding the Impacts of Asia Mega-Cities
      • How responding to climate change might affect health, for better or for worse
      • Kanuka, Kereru and carbon capture - Assessing the effects of a programme taking a fresh look at the hill and high country land resource
      • Wairoa: Community perceptions of increased afforestation
      • Te Kākahu Kahukura Ecological Restoration project: A story within a story
    • Issue #9 Impacts of Covid-19 >
      • Introduction to Impact Connector Issue 9 – Impact assessment and Covid 19
      • Covid-19 fast-track consenting: climate change legacy key to success
      • Tourism – the long haul ahead
      • Making sense of the impact of Covid-19: planning, politics, and the public good
    • Issue #8 Social Impact Assessment >
      • Challenges for Social Impact Assessment in New Zealand: looking backwards and looking forwards
      • Insights from the eighties: early Social Impact Assessment reports on rural community dynamics
      • Impact Assessment and the Capitals Framework: A Systems-based Approach to Understanding and Evaluating Wellbeing
      • Building resilience in Rural Communities – a focus on mobile population groups
      • Assessing the Impacts of a New Cycle Trail: A Fieldnote
      • The challenges of a new biodiversity strategy for social impact assessment (SIA)
      • “Say goodbye to traffic”? The role of SIA in establishing whether ‘air taxis’ are the logical next step in the evolution of transportation
    • Issue #7 Ecological Impact Assessment >
      • The future of Ecological Impact Assessment in New Zealand
      • Ecological impact assessment and roading projects
      • EcIA and the Resource Management Act
      • Professional Practice and implementation of EcIA
      • EcIA in the Marine Environment
    • Issue #6 Landscape Assessment >
      • Introduction
      • Lives and landscapes: who cares, what about, and does it matter?
      • Regional Landscape Inconsistency
      • Landscape management in the new world order
      • Landscape assessment and the Environment Court
      • Natural character assessments and provisions in a coastal environment
      • The Assessment and Management of Amenity
      • The rise of the THIMBY
      • Landscape - Is there a common understanding of the Common?
    • Issue #5 Cultural Impact Assessment >
      • Introduction
      • Potential of Cultural Impact Assessment
      • The Mitigation Dilemma
      • CIA and decision-making
      • Insights and observations on CIA
      • Achieving sustainability through CIA
      • CIA - Enhancing or diminishing mauri?
      • Strategic Indigenous Impact Assessment?
    • Issue #4 Marine Environment >
      • Introduction
      • Iwi, Impact Assessment and Marine Environment
      • Sea-Bed Mining Application in Taranaki
      • The wreck of the MV Rena
      • High Court RMA Controls on Fishing
      • Initiatives in the Pacific Islands
      • SEA in an NZ context
    • Issue #3 Strategic Environmental Assessment
    • Issue #2
    • Issue #1
  • Resources
    • Webinars
    • IAIA Resources
    • United Nations Guidance
    • Donors Guidelines and Principles
    • Oceania and the Pacific
    • Natural Systems >
      • Biodiversity & Ecosystem Services
      • Agriculture & Food Systems
      • Water Management
    • Social Impact Assessment
    • Health Impact Assessment >
      • Climate Change & Health
      • Air Quality Impact Assessment
    • Cumulative Impact Assessment
    • Community and Stakeholder Engagement
    • Indigenous Peoples
    • Climate Change and Disaster Risk Resilience >
      • Adaptation Planning
      • Nature-based Solutions
    • Urban Development
    • Sustainable Development Goals
    • Strategic Environmental Assessment
  • Community
    • Membership Directory
    • News
    • Policy Submissions >
      • Past Submissions
    • Courses
This article is reproduced, with permission, from Russell McVeagh's August 2017 edition of their Resource Management Update. 

High Court leaves the door ajar for RMA controls on fishing​ 


​​In our February Resource Management Update, we discussed the Environment Court decision of Motiti Rohe Moana Trust v Bay of Plenty Regional Council, where the Trust sought a declaration that it is lawful for the Council to include objectives, policies and rules in its proposed Regional Coastal Environment Plan to control fishing activities within its boundaries (on the grounds of maintaining indigenous biodiversity and recognising and providing for mana whenua interests). The High Court has now issued its decision on appeal from the Environment Court's decision.
The key issue before the Environment Court was the interface between the RMA and the Fisheries Act 1996, and particularly the application of s 30(2) of the RMA (which prevents regional councils from controlling the taking, allocation or enhancement of fisheries resources). The Environment Court held that the Council could include controls in the Plan to restrict the taking of fish and fishing methods for purposes other than managing fishing or fishing resources, including on those grounds mentioned earlier.

The Attorney-General, on behalf of the Ministry for Primary Industries, appealed to the High Court, where Whata J considered the tension between s 30(2) of the RMA and a regional council's indigenous biodiversity function pursuant to s 30(1)(ga). The High Court found that a regional council may exercise its functions to manage the effects of fishing that are not directly related to the biological sustainability of the aquatic environment as a resource for fishing needs (which is otherwise addressed via the Quota Management System under the Fisheries Act), and that, notwithstanding s 30(2), a regional council may perform its function under s 30(1)(ga) to maintain indigenous biodiversity within the coastal marine area, but only to the extent strictly necessary to perform that function.

While the High Court's reasoning largely accorded with that of the Environment Court, Whata J did not consider that the declaration correctly captured the correct scope of s 30(2). The Court held that the declaration made did not place clear limits on the extent to which a regional council could control fishing in pursuance of its functions, which could lead to unqualified incursion into the sustainable utilisation of fisheries resources under the Fisheries Act. For that reason, Whata J allowed the Attorney-General's appeal in part, with the declaration set aside and leave reserved to the parties to make submissions on the form of a declaration. In his final decision, Whata J declined to make a formal declaration, as any final declaration on the broad, essentially hypothetical questions posed by the Attorney-General ran the risk of overreach or oversimplification. Instead, Whata J identified that the legality of control in disputed areas will need to be worked out "at the finer grain" through the plan-making process, using his earlier analysis as a reference guide.
​
In February, we suggested that under the Environment Court’s approach, regional councils would have greater scope to protect marine life through regional coastal plans, which could generate gains for biodiversity and help to address environmental effects of fishing practices in the coastal marine area, but could also increase regulatory costs for the fisheries industry and create significant uncertainty regarding what management system will apply. In the High Court, however, Whata J commented that the ability of regional councils to provide for matters not controlled under the Fisheries Act "does not open the door to carte blanche regional council regulation of the adverse effects of fishing on the aquatic environment", and that primacy must be given to management of the effects of fishing under the Fisheries Act. Any controls in this area are likely to be highly contentious and subject to further challenge through the plan-making process.

Daniel Minhinnick and Rachel Robilliard

Download Article as PDF
CONTACT US
​NZAIA Incorporated is a registered charity 
#CC54658
This website and all its content is SSL Protected. 
Privacy Policy

  • Home
    • Environmental Impact Assessment
    • Social Impact Assessment
    • Strategic Environmental Assessment
    • Community & Stakeholder Engagement
    • Management, Monitoring and Reporting
  • About Us
    • Core Group >
      • Core Group Meeting Minutes
    • Our Partners and Affiliates
    • AGMs
    • Ethics
  • Membership
    • Sign Up for NZAIA Membership
  • Conferences
    • Proceedings from Past Conferences >
      • 2022 - Wellbeing, Sustainability and Impact Assessment: towards more integrated policy-making
      • 2021 - Social Impact Assessment >
        • Posters
        • 2021 Students
      • 2019 - Climate Change >
        • Posters
        • 2019 Students
        • Conference Photos
        • Contact List
      • 2018 - Regional Development
      • 2016 - Strategic Environmental Assessment
      • 2015 - Where to for Impact Assessment?
      • 2014 - Transport Infrastructure
      • 2013 Fresh Water Management
      • 2012 - Mineral Extraction
  • Impact Connector
    • Issue #14 Impact assessment for infrastructure development >
      • Impact assessment for infrastructure development - an introduction
      • Place Matters: The importance of geographic assessment of areas of influence in understanding the social effects of large-scale transport investment in Wellington
      • Unplanned Consequences? New Zealand's experiment with urban (un)planning and infrastructure implications
      • Reflections on infrastructure, Town and Country planning and intimations of SIA in the late 1970s and early 1980s
      • SIA guidance for infrastructure and economic development projects
      • Scoping in impact assessments for infrastructure projects: Reflections on South African experiences
      • Impact Assessment for Pacific Island Infrastructure
    • Issue #13 Health impact assessment: practice issues >
      • Introduction to health impact assessment: practice issues
      • International Health Impact Assessment – a personal view
      • Use of Health Impact Assessment to develop climate change adaptation plans for health
      • An integrated approach to assessing health impacts
      • Assessing the health and social impacts of transport policies and projects
      • Whither HIA in New Zealand….or just wither?
    • Issue #12 Risk Assessment: Case Studies and Approaches >
      • Introduction
      • Risk Assessment and Impact Assessment : A perspective from Victoria, Australia
      • The New and Adaptive Paradigm Needed to Manage Rising Coastal Risks
      • Reflections on Using Risk Assessments in Understanding Climate Change Adaptation Needs in Te Taitokerau Northland
      • Values-Based Impact Assessment and Emergency Management
      • Certainty about Communicating Uncertainty: Assessment of Flood Loss and Damage
      • Improving Understanding of Rockfall Geohazard Risk in New Zealand
      • Normalised New Zealand Natural Disaster Insurance Losses: 1968-2019
      • Houston, We Have a Problem - Seamless Integration of Weather and Climate Forecast for Community Resilience
      • Innovating with Online Data to Understand Risk and Impact in a Data Poor Environment
    • Impact Connector #11 Climate Change Mitigation, Adaptation, and Impact Assessment: views from the Pacific >
      • Introduction
      • Climate change adaptation and mitigation, impact assessment, and decision-making: a Pacific perspective
      • Climate adaptation and impact assessment in the Pacific: overview of SPREP-sponsored presentations
      • Land and Sea: Integrated Assessment of the Temaiku Land and Urban Development Project in Kiribati
      • Strategic Environmental Assessment: Rising to the SDG Challenge
      • Coastal Engineering for Climate Change Resilience in Eastern Tongatapu, Tonga
      • Climate-induced Migration in the Pacific: The Role of New Zealand
    • Impact Connector #10 Climate Change Mitigation and Adaptation >
      • Introduction
      • Is a “just transition” possible for Māori?
      • Adapting to Climate Change on Scale: Addressing the Challenge and Understanding the Impacts of Asia Mega-Cities
      • How responding to climate change might affect health, for better or for worse
      • Kanuka, Kereru and carbon capture - Assessing the effects of a programme taking a fresh look at the hill and high country land resource
      • Wairoa: Community perceptions of increased afforestation
      • Te Kākahu Kahukura Ecological Restoration project: A story within a story
    • Issue #9 Impacts of Covid-19 >
      • Introduction to Impact Connector Issue 9 – Impact assessment and Covid 19
      • Covid-19 fast-track consenting: climate change legacy key to success
      • Tourism – the long haul ahead
      • Making sense of the impact of Covid-19: planning, politics, and the public good
    • Issue #8 Social Impact Assessment >
      • Challenges for Social Impact Assessment in New Zealand: looking backwards and looking forwards
      • Insights from the eighties: early Social Impact Assessment reports on rural community dynamics
      • Impact Assessment and the Capitals Framework: A Systems-based Approach to Understanding and Evaluating Wellbeing
      • Building resilience in Rural Communities – a focus on mobile population groups
      • Assessing the Impacts of a New Cycle Trail: A Fieldnote
      • The challenges of a new biodiversity strategy for social impact assessment (SIA)
      • “Say goodbye to traffic”? The role of SIA in establishing whether ‘air taxis’ are the logical next step in the evolution of transportation
    • Issue #7 Ecological Impact Assessment >
      • The future of Ecological Impact Assessment in New Zealand
      • Ecological impact assessment and roading projects
      • EcIA and the Resource Management Act
      • Professional Practice and implementation of EcIA
      • EcIA in the Marine Environment
    • Issue #6 Landscape Assessment >
      • Introduction
      • Lives and landscapes: who cares, what about, and does it matter?
      • Regional Landscape Inconsistency
      • Landscape management in the new world order
      • Landscape assessment and the Environment Court
      • Natural character assessments and provisions in a coastal environment
      • The Assessment and Management of Amenity
      • The rise of the THIMBY
      • Landscape - Is there a common understanding of the Common?
    • Issue #5 Cultural Impact Assessment >
      • Introduction
      • Potential of Cultural Impact Assessment
      • The Mitigation Dilemma
      • CIA and decision-making
      • Insights and observations on CIA
      • Achieving sustainability through CIA
      • CIA - Enhancing or diminishing mauri?
      • Strategic Indigenous Impact Assessment?
    • Issue #4 Marine Environment >
      • Introduction
      • Iwi, Impact Assessment and Marine Environment
      • Sea-Bed Mining Application in Taranaki
      • The wreck of the MV Rena
      • High Court RMA Controls on Fishing
      • Initiatives in the Pacific Islands
      • SEA in an NZ context
    • Issue #3 Strategic Environmental Assessment
    • Issue #2
    • Issue #1
  • Resources
    • Webinars
    • IAIA Resources
    • United Nations Guidance
    • Donors Guidelines and Principles
    • Oceania and the Pacific
    • Natural Systems >
      • Biodiversity & Ecosystem Services
      • Agriculture & Food Systems
      • Water Management
    • Social Impact Assessment
    • Health Impact Assessment >
      • Climate Change & Health
      • Air Quality Impact Assessment
    • Cumulative Impact Assessment
    • Community and Stakeholder Engagement
    • Indigenous Peoples
    • Climate Change and Disaster Risk Resilience >
      • Adaptation Planning
      • Nature-based Solutions
    • Urban Development
    • Sustainable Development Goals
    • Strategic Environmental Assessment
  • Community
    • Membership Directory
    • News
    • Policy Submissions >
      • Past Submissions
    • Courses