Case Study

Protected areas established under the RMA

The Court of Appeal in Attorney-General v Trustees of the Motiti Rohe Moana Trust  (Motiti) confirmed that regional councils can impose restrictions on fishing activity for a defined and narrow purpose, that is “to maintain indigenous biological diversity”. 

When doing this councils are confined by the tight set of requirements set out by the Courts: Necessity, Type, Scope, Scale and Location.

It is unlikely that councils will be able to impose controls when the area is adequately protected under the Fisheries Act i.e., they need to show that any provisions under the RMA are “necessary”.

Controls need to be targeted to areas where there is robust evidence of very high biodiversity values and therefore these will almost always be small in “scale”.

Controls also need to pass a s32 RMA assessment as being the most appropriate way to achieve the purpose of the RMA.

Any restrictions on fishing activities imposed by councils therefore need to meet a high test. When they are imposed under the RMA, they play a role in filling gaps in protection not provided for under the Fisheries Act for areas of high indigenous biodiversity value.

Legal framework

The RMA applies a restrictive approach to activities in the coastal marine area whereby activities are not allowed unless they are expressly provided for.  The disturbance of foreshore or seabed that has, or is likely to have, an adverse effect is captured by this prohibition and is not therefore allowed unless expressly provided for.  

However, this prohibition does not apply to disturbance for the purpose of lawfully harvesting plants or animals.  Thus, lawful fishing can occur without needing to be expressly provided for. The corollary is that if a plan wishes to regulate fishing it must expressly do so.

A regional council’s authority to regulate activities in the coastal marine area is set out in section 30 of the RMA. Of relevance are:

1. s30(1)(d)(i)): Control land and associated natural and physical resources.
2. s30(1)(d)(ii): Control the  occupation of space in, and the extraction of sand, shingle, shell, or other natural material from, the coastal marine area, to the extent that it is within the common marine and coastal area
3. s30(1)(d)(vii): Control activities in relation to the surface of water
4. s30(1)(ga): To establish, implement and review provisions for the purpose of maintaining indigenous biological diversity in their regions. 

The RMA interfaces with the Fisheries Act in section 30. Under section 30(2) of the RMA, a regional council must not perform the functions in section 30(1)(d)(i), (ii) and (vii) to control the taking, allocation or enhancement of fisheries resources for the purpose of managing fishing or fisheries resources controlled under the Fisheries Act 1996. Section 30(1)(ga) is not subject to section 30(2).

The Fisheries Act has a corresponding provision which prohibits regional plans from providing for the allocation of access to any fisheries resource (say, for example, between commercial and recreational fishers).

Application of the law

The Court of Appeal in Motiti  considered the above provisions and the interface of the RMA and the Fisheries Act. Motiti was concerned with the Bay of Plenty Regional Council’s ability to prohibit fishing in specified parts of the coastal marine area to maintain indigenous biodiversity. The indigenous biodiversity the Council wanted to protect was fish species (i.e., snapper) which is regulated under fisheries legislation.

The case arose because overfishing of snapper (and crayfish) was resulting in kina barrens. The Council wished to protect the snapper from the effects of unsustainable fishing.

Motiti confirmed that both the Fisheries Act and the RMA give powers to decision makers to impose controls to protect biodiversity in the coastal marine area.  It held that:

• A regional council may control activities under the RMA to maintain indigenous biodiversity (s30(1)(ga)).
  
  
• When dealing with a fisheries resource, controls needed to maintain indigenous biodiversity are in practice likely to require the exercise of functions subject to the s30(2) restriction.  For example, a control to prohibit fishing for the purpose of maintaining biological diversity will also be a control of land and associated natural and physical resources. ‘Land’ includes the seabed and ‘natural and physical resources’ includes water.
  
  
• Therefore, even though s30(1)(ga) is not subject to s30(2), controls established under it can be subject to s 30(2) where specified s 30(1)(d) functions are also invoked.
  
  
• Accordingly, a regional council may control fisheries resources under its s30 functions provided it does not do so to manage those resources for Fisheries Act purposes.
  
  
• A Fisheries Act purpose is to control the taking, allocation or enhancement of fisheries resources for the purpose of managing fishing or fisheries resources controlled under the Fisheries Act (the s30(2) restriction).
  
  
• When deciding whether a control would be for a Fisheries Act purpose and thus contravene s30(2), the following provide some objective guidance that can be applied to any given factual setting:

Necessity – whether the objective of the control is already being met through measures implemented under the Fisheries Act.

Type – 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 to amount to fisheries management.

• There is no additional gloss required to an RMA control that it be “strictly necessary”.  

Following the Court of Appeal’s decision, protection measures were implemented in the proposed Bay of Plenty Regional Coastal Plan. In summary, the Plan prohibits the temporary or permanent damage, destruction or removal of plants or animals in the mapped Motiti Protection Area.

The Environment Court has recently applied Motiti to assess whether controls on fishing should be applied in the proposed Northland Regional Plan. The plan as notified did not contain any particular marine protected areas, policies or rules to control the effects of fishing on values of significant ecological areas. Such provisions were sought by the Appellants (and supporting s274 parties, including Māori entities).

The Court decided to apply marine protected areas to some areas. It rejected protection controls in areas where the Fisheries Act adequately protected the space and where there was insufficient evidence to satisfy if that it should impose controls.  

Northland Regional Council is currently implementing the Court’s decision. In summary, the plan permits the temporary or permanent damage or destruction or removal of fish, aquatic life or seaweed in limited listed circumstances (including those involving specific scientific research, or the harvest of kina) and otherwise prohibits it. Within a listed area, the plan also expressly prohibits bottom trawling, bottom pair trawling, Danish seining and purse seining.

Protective provisions have also been included in the proposed Marlborough Environment Plan, with the relevant provisions concerning fishing controls being settled by consent. This prohibits dredging and bottom trawling, but not fishing, within any listed Category A or B Ecologically Significant Marine Site; and provides for the activities as a discretionary activity in buffer zones.

Last updated at 3:31PM on January 21, 2025