Resource Management Act 1991

Regional councils can control the activity of fishing through its regional plan, even where that activity is regulated under the Fisheries Act, provided it does so for resource management purposes (not for Fisheries Act purposes). 5269

A control would be considered to be introduced for a Fisheries Act purpose if its purpose was to achieve or contribute to sustainable utilisation of fisheries resources in order to exploit the potential of fisheries resources to meet human fishing needs over time. 5270  

Legitimate purposes for regional council control of fishing may include:

  • Maintaining indigenous biological diversity and protecting areas of significant indigenous biodiversity value.
  • Preserving areas of natural character.
  • Recognising and providing for Māori values.

The Court of Appeal has identified 5 indicators or factors it considered “may provide some objective guidance” when determining whether a proposed control on fishing in a regional plan is for a resource management purpose of a Fisheries Act purpose.  These are: 5271

  • Necessity means whether the objective of the control is already being met through measures implemented under the Fisheries Act
  • Type refers to the type of control. Controls that set catch limits or allocate fisheries resources among fishing sectors or establish sustainability measures for fish stocks would likely amount to fisheries management
  • Scope: a control aimed at indigenous biodiversity is likely not to discriminate among forms or species
  • Scale: the larger the scale of the control the more likely it is to amount to fisheries management
  • Location: the more specific the location and the more significant its biodiversity values, the less likely it is that a control will contravene s 30(2)

As well as showing that a proposed control is for a resource management purpose, regional councils or submitters will need to present sufficient evidence to justify introduction of the control, as is the case with any control included in a planning instrument.

This power has been relied on by the Bay of Plenty Regional Council to include three fishing prohibition areas in its regional plan, considered necessary to protect indigenous biological diversity and areas of outstanding natural character, from unsustainable fishing practices.  The three areas are:

  • Ōtāiti (including Te Papa, Te Porotiti and Okaparu reefs)
  • Motunau Island
  • Motuhaku Island

  1. Attorney General v Trustees of the Motiti Rohe Moana Trust [2019] NZCA 532 at [65]-[66].

  2. Attorney General v Trustees of the Motiti Rohe Moana Trust [2019] NZCA 532 at [44] and [50].

  3. Attorney General v Trustees of the Motiti Rohe Moana Trust [2019] NZCA 532 at [64].

Last updated at 11:52AM on August 24, 2021