David vs Goliath: Tiny hapū battles government for marine protection

Saturday, 23 June 2018

A tiny hapū is facing down the Government and fishing industry giants in a bid to protect fish and seabirds on its coastline.

The Motiti Rohe Moana Trust won 'groundbreaking' rulings in the Environment and High Courts that give local councils powers to regulate fishing to protect native species. Now the Government is threatening to take the fight all the way to the Supreme Court.

Motiti islanders have battled to protect the marine life on their doorstep since the Rena container ship foundered on the nearby Astrolabe reef in 2011, spilling 350 tonnes of oil and countless fish and up to 20,000 seabirds.

On Saturday, Fisheries Minister Stuart Nash was forced to defend a move that will see the hapu tied up in litigation for years. He said a final decision on the appeal will be made next month.

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* Damning report into Rena grounding**

He supported the appeal because the law needed to be clarified.

Nash and the Trust's Te Atarangi Sayers went head to head on a panel at Forest and Bird's annual conference in Wellington on Saturday.

Sayers explained the court ruling allows councils to use the Resource Management Act to protect the marine environment. Previously, that has only been applied to land.

'The marine environment is in crisis and needs help from local communities in replenishing and restoring the integrity of it. I feel like if we don't act now, with the court decisions we have already had, we are going to out ourselves in a more precarious state.'

He agreed it was an unfair fight but said: 'Life has challenges and if this challenge is supposed to be, then it will be.'

Nash said the court decision marked a 'fundamental change' in how fisheries were managed, and the legislation needed to be clarified. 'There are significant implications. I think this is an issue that we need to understand the implications of and I would have no problems seeing this go all the way to the Supreme Court.'

He told Stuff: 'It comes to the primacy of the RMA over Fisheries legislation, in terms of managing our marine areas. I'm not saying one is more important than the other, but what I do think is we need to get this right.'

Nash said he, Conservation Minister Eugenie Sage and Environment Minister David Parker would all give advice to Solicitor-General Una Jagose, who will make the final decision. Nash said he would accept her decision, whichever way it goes.

Nash said the court action was about determining who had legislative responsibility to manage the 12 nautical mile inshore zone around our coast. 'In the end, I do believe we all want the same thing; healthy ecosystems and abundant fisheries, and the current court decision raises an important constitutional issue around which authority has the primary responsibility for achieving and maintaining this'.

The waters around Motiti Island, in the Bay of Plenty, were degraded after the MV Rena ran aground in 2011.

Sage refused to be drawn for comment. In Opposition, she criticised the former National Government for challenging the original court decision.

The hapu originally decided to act in the wake of the Rena disaster.

The MV Rena, grounded on Astrolabe Reef in 2011 was later declared New Zealand's worst ever maritime environmental disaster.

Motiti Rohe Moana Trust TA Sayers has been fighting to close Astrolabe Reef to fishing to protect fragile marine life.

The MV Rena was a 47,000-tonne laden with 1386 containers - 11 carrying hazardous substances.

Fish life around the Rena wreck flourished after the area was closed to fishing.

Authorities had placed an exclusion zone around the wreck for allow for salvage – and with little to disturb the waters, marine life flourished. In 2016, the Motiti Rohe Moana Trust asked MPI to extend that protection with a two year temporary closure of the reef to all fishing. MPI refused and when the vessels arrived the sanctuary was decimated.

Undeterred, Motiti Rohe Moana Trust asked the Bay of Plenty Regional Council to intervene, arguing it had powers under the Resource Management Act to protect the reef with a rahui. The council didn't agree and so the Trust – alongside Forest and Bird – successfully took a case to the Environment Court.

Their fight wasn't over - The Crown and Marlborough Regional Council appealed to the high court. Following a High Court judicial ruling last year, the Environment Court ordered the Bay of Plenty Council to begin the process of protecting the reef, and two other areas, from the impact of fishing.

Te Ohu Kaimoana, which speaks on behalf of commercial quota owners, indicated in January that it would challenge any threat to access the waters.

Forest and Bird chief executive Kevin Hague said the legal challenges were disappointing. 'This is the first time the RMA has been used to protect important marine ecosystems and surrounding 'buffer zones'. It's a hugely important step in a long process and has implications across the entire country.'

He pointed to the Environment Court's ruling that said: 'MPI have refused to intervene and take steps to protect this area, notwithstanding the undisputed values recognised.'