Bay of Plenty Regional Council is joining the Ministry for Primary Industries' appeal relating to who controls fishing-related activities in regional plans.

The Attorney-General lodged a Notice of Appeal in the Tauranga High Court on January 16 on this declaration.

The declaration relates to the regional council including objectives, policies and methods in its proposed Regional Coastal Environment Plan, that in some defined parts of the coastal marine area limit fishing methods or techniques for the purpose of protecting biodiversity.

The appeal follows an Environment Court ruling in December that regional councils could do just that – use the Resource Management Act to protect native species by controlling fishing.

The decision to appeal has been criticised, but on reading the judgement it's expected. Environment Court Judge Jeff Smith says so in his judgement.

'All parties agreed that there was some merit to considering the interrelationship of these provisions and that the matter had some precedent value and was in the nature of a test case. In any event the Court intends to reserve any question of costs until the conclusion of the substantive hearing and parties would need to seek direction to include costs in relation to this matter at the conclusion of that hearing.”

Judge Smith's ruling followed an application by the Motiti Rohe Moana Trust, backed by Forest & Bird, who last year sought a rahui, a temporary closure of Astrolabe Reef under the Fisheries Act, to allow depleted fish stocks and taonga species to recover from the damage caused by the Rena grounding.

The Bay of Plenty Regional Council believed it did not have power to prevent fishing around the reef. The Environment Court ruled in December that it did.

The core legal issue is the interface between the Fisheries Act 1996 and the Resource Management Act 1991 and the application of RMA section 30(2) which appears to prevent the regional council and the Minister of Conservation from performing functions specified in the Fisheries Act – that is managing fisheries.

In his decision, Judge Smith says the clause's purpose may be a matter to be had in particular regard to as part of the assessment of the merits of the provisions within the plan, rather than a limit on jurisdiction.

As a result of background information from the Attorney General's office he is satisfied the two laws are intended to work in tandem.

'The current interface reflects acceptance that fishing like other activities can be curtailed under the RMA and other statutes on the basis of effect on matters such as intrinsic and amenity values,”

He concluded (in line with previous High Court decisions) that the intent of the law is to allow regional councils to undertake a broader assessment and to enable objectives policies and methods to identify indigenous biological diversity issues whether on land on the coastal marine are or elsewhere.

He also recognised that amendments to appeals might be sough as a result of the declaration and that the iterative process before the court might also lead to further changes at the merits hearing.

'We also not the court has not considered the particular changes sought by the appellant in relation to whether any proposed rule meets the various tests under s 32 and the other requirements of the RMA,” says the decision.

'The purpose of this declaration is to assist the parties in preparing for and evaluating those provisions for the purpose of the hearing to that extent the existing objectives policies and methods of the Regional Coastal Plan in relation to cultural matters and biological diversity will assist. It is within the framework of those settled provisions that the evaluations will occur.”

To view the judgement click here.