An important Environment Court ruling which would stop fishing in three popular sites in the Bay of Plenty uses the Resource Management Act to impose a ban because government officials would not intervene under the Fisheries Act.

The Motiti Rohe Moana Trust and Forest & Bird wanted the fishing ban over a broad area of waters around its island but has won this special intervention over reefs including the one on which the MV Rena ran aground in 2011.

The action originated after the ban on vessels around the Astrolabe Reef during the Rena incident and for two years afterwards saw marine life blossom.

The trust asked the then-Minister of Fisheries to continue the ban but he declined. It then went to the High Court seeking a declaration the Bay of Plenty Regional Council could impose a ban under the RMA and that court agreed. The Crown is appealing that ruling to the Court of Appeal.

But in the meantime the Motiti trust and Forest & Bird took a separate case to the Environment Court asking it to make the regional council act. And in that action the Environment Court has also agreed – telling the council to move ahead on the protections for the flora and fauna for three reefs. Its decision is interim, and awaits the Court of Appeal verdict on the broader principle.

The Environment Court was “disturbed” by an MPI submission detailing endangered species like seals, dolphins and penguins affected by ‘by-catch’ in the wider fishery.

Tribal advocates have referred to the Bay of Plenty as the Bay of Empty because of over-fishing by commercial and recreational fishers.

The Resource Management Act does not usually apply to fisheries, meaning regional councils have felt unable to impose conditions on fishing methods or techniques or the size of fish caught or the rate of fishing as this was held to be solely covered by the other law, the Fisheries Act, administered by MPI.

In the latest Environment Court hearing both the ministry and the regional council argued the RMA could not be used to change the regional coastal plan to ban fishing as the Motiti Māori leaders wanted.

But the Environment Court panel made up of two judges and three commissioners found for the Motiti islanders, deciding three sensitive areas justified a prohibition on the damage, destruction or removal of flora and fauna. The court was “disturbed to see the level of by-catch of protected animals” reported by the ministry.

“We are satisfied in this case that this requires the protection of areas around these sites sufficient to ensure the significant indigenous biodiversity in these identified areas does not suffer adverse effect. The control involved is not related to fishing, although it would include fish along with other fauna within the area of control.”

The three areas to be protected cover less than 30 km2 of the Motiti Natural Environment Management Area, and what the Environment Court called “an infinitesimal proportion” of the wider Bay of Plenty and the fishing management area which stretches from East Cape to the top of the North Island.

Despite the acknowledged “outstanding” environmental values of the areas around Motiti, the Ministry of Primary Industries had refused to intervene to protect the area.

The court said its proposed ban over three reefs would involve a “displacement of commercial and recreational fishing [which] is likely to be minimal”.

“In the context of the catchment area for MPI, it is negligible. No evidence was produced to us of any change during the period that the area was closed for Rena.” The container ship Rena ran aground, causing a vast oil slick and pollution in the Bay of Plenty, sank, and lies as a wreck on the Otaiti, or Astrolabe, reef.

The court’s solution would stop fishing above the key reefs but allow recreational diving and for species to be photographed or viewed. “This will mean divers would still be able to utilise the Rena wreck, although they could not remove flora or fauna” it said, adding later: “There is significant potential for economic benefit to tourism in particular and recreational diving [with] the opportunity to combine a visit to one of the world’s more significant wrecks with the viewing opportunities for biodiversity.”

However another wreck, the Taioma, which lies to the southwest of the island would remain open to fishing and enable spearfishing. Restricting the ban to three specific areas rather than all around the island meant Motiti Māori, as the kaitiaki or guardians of the local waters, would be able to obtain kaimoana.

“We have concluded that this is a proportionate response.”

So the court has opened the way for the regional council to amend its regional coastal plan to impose the ban, subject to wording being finalised by the court and the parties. That work could take place in advance of the Court of Appeal ruling on the wider issue of jurisdiction between the two laws.

“Having concluded that there should be such areas protected by rules, we acknowledge this decision must be interim and must await decisions of principle from superior courts.

“Nevertheless the court is concerned further consideration of these issues may be delayed unnecessarily.”

While the regional council said the court’s proposed controls would be expensive to implement and enforce, and the MPI said enforcement on existing marine reserves had been difficult, the court said “the question of whether there should be a rule is separate from the question of its enforceability”.

Tim Murphy is co-editor of Newsroom. He writes about politics, Auckland, and media. Twitter: @tmurphynz

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