Ipsofactoj.com: International Cases [2006] Part 5 Case 3 [PC]


THE PRIVY COUNCIL

(from the Court of Appeal, New Zealand)

Coram

Marlborough Aquaculture Ltd

- vs -

Ministry of Fisheries

(The Chief Executive)

LORD BINGHAM OF CORNHILL

LORD STEYN

LORD HOPE OF CRAIGHEAD

LORD BROWN OF EATON-UNDER-HEYWOOD

SIR STEPHEN SEDLEY

18 JULY 2005


Judgment

Lord Hope of Craighead

(delivered the judgment of the court)

  1. The appellants are an association of marine farmers. Their members wish to establish commercial marine farms in the coastal marine area around the top of the South Island, especially in the Marlborough Sounds where most marine farming in New Zealand takes place. The first respondent is the Chief Executive of the Ministry of Fisheries. He is responsible for the administration of the Fisheries Acts 1983 and 1996. The second respondents appear in these proceedings on behalf of others who are interested in fishing in the Marlborough Sounds and the surrounding area. They represent commercial fishers who are not marine farmers such as scallop dredgers and persons interested in fishing for recreation, all of whose activities are liable to be restricted by the presence of marine farms in the areas where they wish to fish.

  2. In recent years New Zealand’s coastal marine area has come under increasing pressure as a result of the development of marine-based aquaculture. The Marlborough Sounds area in particular is rich in marine life, much of which is capable of being harvested for recreational and commercial purposes. It is also capable of supporting artificially created structures known as marine farms. They are designed to enable fishing operations to be carried out in the coastal marine area more intensively. Some consist of cages in which fish, especially salmon, are grown in captive conditions until they have reached the stage when they can be harvested. Others – the great majority in New Zealand – consist of floating structures for farming mussels. Typically they consist of parallel rope longlines anchored at each end to the sea floor and held up on the surface by floatation buoys, from which culture ropes known as droppers are suspended in the water column. The droppers attract mussels, dredge oysters, scallops and other species of shellfish whose habit is to attach themselves to any stationary object that they can find in the water. The structures are designed to attract them in sufficiently large quantities for harvesting commercially.

  3. Marine farms have their value, particularly as their products are an important component in New Zealand’s export trade. But the space which they occupy restricts the ability of others to carry on fishing operations by conventional methods in and close to the boundaries of the same area, as well as inshore of the marine farm. They tend also to modify the marine environment beneath them and close to their boundaries. The process of construction can cause considerable disturbance to the sea floor and to marine life growing or living there. Some forms of marine farming, such as salmon farming, may require the provision of large structures which cast a shadow on the seabed. The substances used to cultivate fish grown in cages and shell and other material falling off droppers used for mussel farming during harvesting alter the quality and characteristics of the water and of the sea bed. The local environment is also affected by the consumption by fish and other aquatic organisms within the marine farm of the nutrients which are to be found in the water column. In small quantities these effects are relatively insignificant. But on a large scale these structures have the potential to have a considerable impact on other fishery resources and on those who use them. Mussel farms in particular can cover a very large area. Those in the Marlborough Sounds area range from less than one hectare to 500 hectares, and there are applications in the pipeline for areas up to 10,000 hectares. From an early stage it was recognised that this was an activity that would have to be regulated.

  4. Comprehensive legislation governing the development of marine-based aquaculture in New Zealand was first enacted in the Marine Farming Act 1971. Under the system which it laid down a single permission was required for this activity. It took the form of a lease or licence granted by the then Ministry of Agriculture and Fisheries. In 1991 the legislation was replaced by the Resource Management Act 1991 (“the RMA”). The purpose of that Act, as stated in section 5, was to promote the sustainable management of natural resources. Leases or licences granted by the Ministry were no longer necessary. From the commencement of that Act on 1 October 1991 until 6 July 1993 the establishment of a new marine farm required a new type of resource consent known as a coastal permit granted under section 12 by the local authority. On 7 July 1993 Part 4A of the Fisheries Act 1983 (“the FA 1983”) consisting of sections 67I to 67S, inserted by section 6 of the Fisheries Amendment Act 1993, came into force. The establishment of a new marine farm now required two permits.

    • The first was a coastal permit granted by the local authority.

    • The second was a marine farming permit issued by the Director-General, who is the Chief Executive of the Ministry of Fisheries, under Part 4A of the FA 1983.

    That was the system which was in force at the commencement of this litigation.

  5. With effect from 28 November 2001 a moratorium was imposed on aquaculture activities which required a coastal permit from the local authority. The legislation giving effect to it was contained in amendments to the RMA which were made by the Resource Management (Aquaculture Amendment) Act 2002 which came into force on 26 March 2002. But by section 150E(2) of RMA, as amended by the 2002 Act, it was provided that the moratorium did not apply to a coastal permit for aquaculture activities in a coastal marine area that was the subject of a coastal permit immediately before the moratorium. Legislation was then enacted in a series of seven statutes which comprehensively reformed the system for the regulation of aquaculture that was in force prior to the moratorium. These reforms do not apply to applications for coastal permits which had been notified before 28 November 2001 or which had been granted before 26 March 2002: sections 25 and 50 of the Aquaculture Reform (Transitional Provisions) Act 2004. Applications for a marine farming permit by persons such as those whom the appellants represent who hold coastal permits granted to them before 26 March 2002 will continue to be determined under the provisions of the RMA and the FA 1983 which were in force prior to the commencement of the moratorium.

    THE ISSUES

  6. Section 67J(2) of the FA 1983 provides that a marine farming permit shall only be issued to a person who holds a coastal permit granted under section 12 of the RMA for the area applied for. A dispute has arisen between the parties as to how the relevant provisions of these two statutes are to be interpreted and implemented in relation to marine farming activities in the coastal marine area. The issue relates to the division of responsibility between the regional council as the consent authority under the RMA and the Director-General as the consent authority under the FA 1983.

  7. Marlborough District Council is the consent authority under the RMA for the coastal marine area of the Marlborough Sounds. On 7 June 1995 it granted to three individual marine farmers, J R Cowin, R J Curtis and J M Goulding (“the applicants”), a coastal permit to occupy a three hectare space in Waitata Bay and to disturb the seabed for the purpose of farming greenshell mussels, blue mussels, dredge oysters and scallops using standard mussel line equipment and suspended culture systems. Among the grounds for its decision (communicated by letter dated 22 June 1995) was the following:

    The Committee did not consider that the proposed marine farm would have a significantly adverse effect on commercial scallop harvesting.

    The Challenger Scallop Enhancement Company Limited appealed against this decision to the Environment Court. On 15 September 1997 the Environment Court allowed the appeal in part by reducing the area of the proposed marine farm to 2.4 hectares. On 23 September 1997 the applicants applied to the first respondent for a marine farming permit under section 67J of the FA 1983. By letter dated 13 September 1999 an official in the Ministry of Fisheries, acting on behalf of the Director-General, informed the applicants that he had declined their application. He gave the following reason for his decision:

    In consideration of the merits of the application and of the additional material, presented both by yourself and your legal counsel, I am not satisfied that there will be no undue adverse effect on the recreational scallop fishery from the granting of [a] marine farming permit at the Waitata Bay site.

  8. In April 2000 the applicants erected some of the structures for which a coastal permit had been issued at the site of the proposed marine farm. They did so to prevent the lapsing of their coastal permit under section 125 of the RMA, which provided that a resource consent lapsed after two years (the period is now five years) unless an extension was obtained. In order to obtain an extension it would have been necessary for them to show that they had made substantial progress or effort towards giving effect to the consent and to obtain approval from all adversely affected persons. They took the view that for this and other practical reasons it was desirable that those who had obtained a coastal permit should be able immediately after it had been issued to erect the structures which they proposed to use for their marine farms.

  9. The applicants disputed the validity of the Director-General’s decision to refuse them a marine farming permit. They did so on the ground that he was not entitled to take into account the likely effect of the structures of their proposed marine farm when considering an application for a marine farming permit. This, they maintained, was a matter for the local authority. Having agreed to re-examine the matter following a judicial review of his refusal of the application, the first respondent decided in January 2002 to seek declaratory relief from the High Court under the Declaratory Judgments Act 1908. In his statement of claim he sought two declarations. The first was that when considering an application for a marine farming permit the Director-General could take into account the likely effect of the structures of the proposed marine farm on other fishing activities. The second was that the applicants’ coastal permit did not entitle them to erect the structures of their proposed marine farm in advance of the issue to them of a marine farming permit.

  10. In a judgment which was delivered on 10 July 2002 Neazor J held that the Director-General was not authorised to decide where structures should be built in the coastal marine area. He said that he could take into account the likely effect on fishing of operating a marine farm on the structures for which the applicant had been granted a coastal permit by the local authority. But he could not alter the decision of the local authority to allow the structures to be erected. The Court of Appeal (Keith, Blanchard and McGrath JJ), in a judgment which was issued on 25 September 2003, disagreed. It held that a coastal permit did not authorise the construction of and occupation of space by marine farming structures unless they could be used for marine farming. It followed that the coastal permit did not authorise the carrying out of these activities before a marine farming permit had been obtained from the Director-General. It also held that the Director-General was entitled to take into account the potential effect of the structure of the proposed marine farm when considering an application for a marine farming permit. On 10 March 2004 the Court of Appeal gave leave to appeal against its decision to their Lordships’ Board.

    THE LEGISLATION

  11. It is necessary, in order to describe the context of the dispute in a little more detail, to identify the principal provisions of the legislation on which its resolution depends.

  12. Section 12 of the RMA contains the following restrictions on the use of the coastal marine area:

    (1)

    No person may, in the coastal marine area, -

    ....

    (b)

    Erect, reconstruct, place, alter, extend, remove or demolish any structure or any part of a structure that is fixed in, on, under, or over any foreshore or seabed;

    ....

    unless expressly allowed by a rule in regional coastal plan and in any relevant proposed regional coastal plan or resource consent.

    (2)

    No person may, in relation to land of the Crown in the coastal marine area, or land in the coastal marine area vested in the regional council, -

    (a)

    Occupy the land and any related part of the coastal marine area;

    ....

    unless expressly allowed by a rule in a regional coastal plan and in any relevant proposed regional coastal plan or by a resource consent.

    Section 87 of the RMA defines the various types of “resource consent” that may be granted under the Act. A consent to do something in a coastal marine area that would otherwise contravene section 12 is called a “coastal permit”.

  13. Section 12(4) of the RMA contains a definition of the expressions “occupy” and “occupation”. As amended by the Resource Management Amendment Act 1997 with effect from 17 December 1997, this subsection provides as follows:

    In this Act ....,

    (a)

    ‘Occupy’ means the activity of occupying any part of the coastal marine area, -

    (i)

    Where that occupation is reasonably necessary for another activity;

    (ii)

    Where it is to the exclusion of all or any class of persons who are not expressly allowed to occupy that part of the coastal marine area by a rule in a regional coastal plan and in any relevant proposed regional coastal plan or by a resource consent; and

    (iii)

    For a period of time and in a way that, but for the rule in the regional coastal plan and in any relevant proposed regional coastal plan or the holding of a resource consent under this Act, a lease or licence to occupy that part of the coastal marine area would be necessary to give effect to the exclusion of other persons, whether in a physical or legal sense: -

    and ‘occupation’ has a corresponding meaning.

  14. The main effect of the amendment to section 12(4) of the RMA which was introduced by the 1997 Act with effect from 17 December 1997 was to substitute the phrase “where that occupation is reasonably necessary for another activity” for the words “necessary for the activity” in the previous version of section 12(4)(a). Strictly speaking, as the applicants’ coastal permit was granted on 7 June 1995, it is the version of section 12(4) that was in force at that date that applies to their case. It was suggested by the appellants that the Court of Appeal had misdirected itself by basing its decision on the later version of this subsection. But there is nothing in this criticism. The case was argued without objection in the Court of Appeal on the basis that the later version was the relevant version for present purposes. As the learned Solicitor General pointed out, the appellants represent a wide variety of interests some of whose applications for a coastal permit can be taken to have been made after the date when the later version of section 12(4) took effect.

  15. Section 30 of the RMA provides:

    (1)

    Every regional council shall have the following functions for the purpose of giving effect to this Act in its region:

    ....

    (d)

    In respect of any coastal marine area in the region, the control (in conjunction with the Minister of Conservation) of –

    (i)

    Land and associated natural and physical resources:

    (ii)

    The occupation of space on land of the Crown or land vested in the regional council, that is foreshore or seabed, and the extraction of sand, shingle, shell or other natural material from that land:

    (vii)

    Activities in relation to the surface of water:

    ....

    (2)

    The functions of the regional council and the Minister of Conservation under subparagraph (i) or subparagraph (ii) or subparagraph (vii) of subsection (1)(d) do not apply to the control of the harvesting or enhancement of populations of aquatic organisms, where the purpose of that control is to conserve, use, enhance, or develop any fisheries resources controlled under the Fisheries Act 1996.

  16. Section 122(5) of the RMA provides:

    Except to the extent -

    (a)

    That the coastal permit expressly provides otherwise; and

    (b)

    That is reasonably necessary to achieve the purpose of the coastal permit, -

    no coastal permit shall be regarded as –

    (c)

    An authority for the holder to occupy a coastal marine area which is land of the Crown or land vested in a regional council to the exclusion of all or any class of persons; or

    (d)

    Conferring on the holder the same rights in relation to the use and occupation of the area against those persons as if he or she were a tenant or licensee of the land.

  17. Section 67J of the FA 1983 deals with matters that are the responsibility of the Director-General. The relevant parts of this section provide:

    (1)

    No person shall farm any fish, aquatic life, or seaweed except under the authority of –

    ....

    (b)

    A marine farming permit; or

    ....

    (2)

    A marine farming permit shall only be issued –

    (a)

    To a person who holds a coastal permit for the area applied for ....

     

    (3)

    ....

    A marine farming permit shall not be issued for an area greater than the area to which the coastal permit .... relates.

    (4)

    Every application for a marine farming permit shall be made to the Director-General in writing in the prescribed form (if any) and shall be accompanied by –

    (a)

    A copy of the coastal permit, or application for a coastal permit ....

    ....

    (5)

    An application for a marine farming permit may be made at any time, whether or not a coastal permit has been granted, but a marine farming permit shall only be issued after the relevant coastal permit has been granted.

    ....

    (8)

     

    The Director-General may not issue a marine farming permit unless he or she is satisfied that the activities contemplated by the application would not have an undue adverse effect on fishing or the sustainability of any fisheries resource.

    (9)

    A marine farming permit shall –

    (a)

    Specify the area in which the permit may be exercised; and

    (b)

    Specify the fish, aquatic life, or seaweed that may be farmed in that area.

    (10)

    A marine farming permit may be issued on conditions –

    ....

    (c)

    That the Director-General considers necessary or desirable to avoid, remedy, or mitigate adverse effects on fishing or the sustainability of any fisheries resource.

  18. Section 67L(1) of the FA 1983 provides:

    (1)

    Notwithstanding anything to the contrary in this Act, a marine farming permit shall authorise the holder of the permit –

    ....

    (b)

    To farm within the permit area; and

    (c)

    To possess, take and sell the farmed fish, aquatic life, or seaweed –

    (i)

    That have been lawfully acquired; and

    (ii)

    That are specified in the marine farming permit –

    subject only to the terms and conditions of the permit and to the provisions of this Part of this Act.

  19. Section 6 of the Fisheries Act 1996 provides:

    (1)

    No provision in any regional plan or coastal permit is enforceable to the extent that it provides for -

    (a)

    The allocation to one or more fishing sectors in preference to any other fishing sector of access to any fisheries resources in the coastal marine area; or

    (b)

    The conferral on any fisher of a right to occupy any land in the coastal marine area or any related part of the coastal marine area, if the right to occupy would exclude any other fisher from fishing in any part of the coastal marine area.

    (2)

    Subsection (1) of this section does not prevent any regional plan or coastal permit authorising the erection in the coastal marine area of a fish farming structure or other structure.

    The expression “fishing sector” is defined in subsection (3) as meaning commercial fishers, recreational fishers, Maori non-commercial fishers, fish farmers and other fishers authorised by the Act to take fish, aquatic life or seaweed.

  20. The legislation lacks an express provision which identifies the division of responsibility between the regional council as the consent authority under the RMA and the Director-General under the FA 1983. That there is a division of responsibility between them is not in dispute. There are a wide variety of matters relating to the design and equipment of the marine farm, such as their visual effect on the environment and how they are to be lit and otherwise equipped so as not to be a hazard to navigation, which are plainly within the exclusive responsibility of the consent authority under the RMA. Section 108 of the RMA gives ample scope to the consent authority to regulate these matters, as it provides that a resource consent may be granted on any condition that the consent authority considers appropriate. Conversely the appellants accept that the Director-General may take into account the effect which mussels and other shellfish gathered together in large quantities in the marine farm may have on the seabed below and on the surrounding waters, as this relates to the use made of the structure in the farming process. The point which is in dispute is whether the Director-General is entitled to have regard to the effect which the mere presence of the structure will have on the coastal marine area.

  21. This problem has now been resolved for all post-moratorium cases by section 56 of the Aquaculture Reform (Repeals and Transitional Provisions) Act 2004, which provides that a coastal permit does not authorise the erection of any structure for the purpose of an aquaculture activity unless the holder of the coastal permit also holds a marine farming permit issued under section 67J of the FA 1983 or a spat catching permit issued under section 67Q(2) of that Act. Their Lordships have not been asked to consider whether this provision applies to persons who were already in the possession of a coastal permit but had not yet been issued with a marine farming permit before the coming into effect of the moratorium.

    THE COURT OF APPEAL'S JUDGMENT

  22. The judgment of the Court of Appeal was delivered by Blanchard J. He dealt first with the question whether someone who has obtained a coastal permit for a marine farm can proceed to erect the structure of the farm in the permitted area in anticipation of the issue of a marine farming permit, provided no farming takes place until the second permit issued. What is envisaged in the case of a structure which is designed for the farming of mussels is the anchoring of the floating structure into its position on the surface of the permitted area, but the withholding of the attachment of droppers to it until the marine farming permit has been issued by the Director-General.

  23. Blanchard J, having noted that neither the RMA nor the FA 1983 contained a directly expressed prohibition against the erection of the structure prior to the issue of a marine farming permit, approached the issue in this way in para 21 of his judgment. He said that it was highly unlikely that Parliament would ever have allowed structures to be erected which might never be used and which would by their mere presence exclude others from the space which they occupied. Section 12(2) of the RMA prohibited the occupation of land in a coastal marine area unless it was expressly allowed by a rule in a plan or by a resource consent. A coastal permit was intended to allow occupation for the purpose for which it was granted. The expression “occupation”, as defined by section 12(4), means the activity of occupying “where that occupation is reasonably necessary for another activity”. It could not be said that occupation by a structure which had been authorised only for the purpose of marine farming which was not yet lawful, and might never become lawful, could be said to be reasonably necessary for that activity. It would not become reasonably necessary until the marine farming permit was issued. Section 122(5) of the RMA was to the same effect.

  24. Developing this point in para 22, he said that it was enough that the relevant “activity” was characterised by the function that the object was designed to carry out. A stationary object such as a marker or a monument, to warn of a hazard or commemorate some event, required nothing more for the activity is was designed for to be lawful. The same could not be said of a marine farming structure, which was unable to carry out its function until a marine farming permit had been obtained for it. Accepting that delay in obtained a marine farming permit might cause the coastal permit to lapse under section 125 of the RMA, he said that this could be overcome by adopting the practice of deferring the commencement of the coastal permit under section 116(1) of the RMA until the marine farming permit was issued: para 24.

  25. Blanchard J then turned to the question whether the Director-General must take into account the effects of the mere presence of the marine farm structure in the permitted area, or is confined instead to a consideration of the effects of the use of the structure for marine farming. Here again he referred to what was to be expected of the legislature: para 25. He said that it was not to be expected that it would have left a gap between the RMA and the fisheries legislation whereby neither the regional council nor the Ministry of Fisheries could consider the effects on fish and marine life of the presence of a structure intended to be used for marine farming. In the court’s view, when the two statutes were examined closely, there was no such gap.

  26. The answer to the problem, as he explained in paras 26-27, was to be found in section 30(2) of the RMA. Section 30(1)(d) gave the regional council various functions in regard to the control of land and its associated natural and physical resources, the occupation of space on land that is foreshore or seabed and activities in relation to the surface of water. But section 30(2) provided that it could not apply these functions to the control of the harvesting of populations of aquatic organisms where the purpose of doing this was to conserve, use, enhance or develop any fisheries resources controlled under the Fisheries Act 1996. The term “fisheries resources” as defined in section 2 of the 1996 Act and the term “aquatic organisms” in section 30(2) both covered all kinds of fish, shellfish and marine plants which might be the subject of marine farming. A control which was designed to control or limit adverse effects caused by the erection of a marine farm structure would be a control for the purpose of conserving that resource. It would also be a control for the purpose of its “enhancement” within the meaning of section 30(2), and it might also be that a control which was concerned with access to the existing resource was a means of ensuring that that resource was available for “harvesting”.

  27. The view which the court took was consistent with the provisions of section 6 of the Fisheries Act 1996: paras 28-30. Section 6(2) enabled a coastal permit to be issued authorising the erection in the coastal marine area of any fish farm structure, but it did not follow from the granting of a coastal permit that the holder could proceed to erect the structure immediately. The effect of section 6 was to preclude a regional council from considering, in connection with an application for the grant of a coastal permit for a marine farm, whether the structure would have an effect on existing populations of aquatic organisms constituting a fisheries resource. This was a matter for the Director-General. Section 67J(8) of the FA 1983 provided that he might not issue a marine farming permit unless he was satisfied that “the activities” contemplated by the application would not have an adverse effect on fishing or the sustainability of any fisheries resource. The activities contemplated by this subsection must include the creation of the structure on or from which the marine farming was to occur. This view was supported by the definition of “to farm” in the definition of “marine farming” in the FA 1983, which includes “any operation in support of, or in preparation for, any marine farming.” The erection of a structure for a marine farm was properly to be regarded as an act of preparation for the marine farming.

    DISCUSSION

  28. Their Lordships have summarised Blanchard J’s careful judgment at some length because they find it hard to improve on his reasoning. In their opinion Mr. Clark for the appellants was unable to demonstrate that it was flawed in any respect. There are however one or two points that can usefully be made in support of the Court of Appeal’s decision.

  29. Mr. Clark’s criticism of the Court of Appeal’s decision on the issue of the right to erect the structure in anticipation of the issue of a marine farming permit was based on four propositions: that the court failed to apply the correct wording of section 12(4) of the RMA; that it contradicted its own decision in Port Otago Ltd v Hall [1998] 2 NZLR 152; that it incorrectly equated section 12 with section 122 of the RMA; and that it ignored the contents of section 87(c) of the RMA.

  30. As their Lordships have already observed (see para 14), there is nothing in the first of these criticisms. The amendment to section 12(4) of the RMA which was introduced by section 4 of the Resource Management Amendment Act 1997 did, of course, change the wording of the subsection. But the essential point which the court took from it, which was that the necessity for the occupation could not be considered without regard to the activity for which the occupation was authorised, was not affected by the amendment. Nor is there anything in the criticisms that were made of the court’s reference to section 122(5) of the RMA or its failure to mention section 87(c) of the RMA. Neither of these points affect the substance of the Court of Appeal’s reasoning.

  31. Their Lordships must however take a moment to deal with the suggestion that the court misapplied its own decision in Port Otago Ltd v Hall [1998] 2 NZLR 152 when it said in para 18 of its judgment in the present case that the definition of “occupy” in section 12(4) contemplated an activity going beyond the mere act of occupying. This criticism was based on a sentence which appears in the penultimate paragraph of the judgment in the Port Otago case at p 160, that the right of occupation and the right to conduct port operations are separate and distinct. But the issue in that case was whether the coastal permit exempted the port company from compliance with rules about noise limits and other rules in the coastal plans for the area. Rejecting the port company’s argument that this was its effect, the court said at p 159 that the coastal permit had been granted for the purpose of allowing it to occupy the area specified in it so that it could manage and operate an existing port-related commercial undertaking that had been acquired by the company. It did not authorise any of its activities, other than to the extent that occupation was itself an activity. The context for the observation at p 160 was entirely different from that contemplated in the present case, where a coastal permit has been issued for an activity that has yet to be carried out and cannot lawfully take place at all without it.

  32. There is one point which Blanchard J did not mention in his judgment but which, in their Lordships’ opinion, provides powerful support for the court’s decision on this issue. It is to be found in section 67J(3) of the FA 1983, which provides that a marine farming permit shall not be issued for an area greater than the area to which the coastal permit relates. This provision indicates that the area for which a marine farming permit may be issued need not be identical to that for which the coastal permit is granted. The whole of the area for which the marine farming permit is issued must, of course, be covered by the authority which the coastal permit gives to occupy that area. But the Director-General’s hands are not tied by it, and the permit which he issues could be for a smaller area.

  33. Neither the FA 1983 nor the RMA make provision for what is to happen if the structure for which the coastal permit has been issued and has already been erected extends over a greater area. Nor do the statutes make provision for what is to be done with the structure if a marine farming permit is refused. It would, no doubt, be open to the regional council to deal with this matter by means of a condition under section 108 of the RMA. The coastal permit that was issued to the applicants in this case provided that the duration of the permit was ten years from the date it was issued. It also provided that at the end of that term the permit holder was to remove all structures from the site at no cost to the council unless a new consent had been applied for and granted. But one would have expected this matter to have been dealt with by statute if the legislature contemplated that structures might be erected in anticipation of the grant of marine farming permit which could not be used because the Director-General declined to issue a marine farming permit for them or for the whole of the area which they occupied. For obvious reasons the effect of such structures on the area could not be said to be neutral from the point of view of other fishing interests or of the environment. The fact that the statutes are silent on this issue indicates that it was always the intention that a coastal permit for the erection of a structure for a marine farm should not be acted upon until it had become clear that it could be used following the issue of a marine farming permit by the Director-General.

  34. Mr. Clark’s main criticism of the Court of Appeal’s decision on the issue about the relative functions of the regional council and the Director-General was that the court had misunderstood the effect of section 30(2) of the RMA and that it had misinterpreted section 6(2) of the Fisheries Act 1996. He said that the effect of these provisions was that it was for the regional council to determine, in the light of competing interests, the amount of space that the structure was to occupy. The matters that were open for consideration by the Director-General were the effects of the proposed operation on the physical environment, not the allocation of fishing resources among participants in the fishing sector.

  35. In their Lordships’ opinion these arguments fail to address the point which the Court of Appeal was making, which was that it is function of the Director-General, not that of the regional council, to consider the effects of structures intended to be used for marine farming on existing populations of fish and marine life in the coastal marine area. It is a misconception to treat control of the harvesting of aquatic organisms as being simply a matter of allocating these resources among those who wish to compete for them. That is a recipe for disaster, as everyone knows who is concerned about the protection of the environment. The harvesting of resources must go hand in hand with their conservation and their enhancement. Otherwise the resource will be exhausted and there will be nothing left for anyone to take. In recent years New Zealand has been setting an example to the world as to how to deal with these matters which other states would do well to emulate. The legislation under consideration in this case makes it quite plain that conservation of marine aquatic organisms is the responsibility of the Ministry under the Fisheries Acts. It is its task to ensure by the taking of appropriate measures that the resource is available for harvesting and that factors which may have an adverse effect on it are prevented or limited. It would be wholly artificial in this context to draw a line between the use of a marine farming structure and its mere presence in the coastal area. The Court of Appeal was right to hold that when considering an application for a marine farming permit the Director-General may take into account the likely effect of the structures of the proposed marine farm on other fishing activities.

    CONCLUSION

  36. Their Lordships will humbly advise Her Majesty that the appeal should be dismissed. The appellants must pay the costs of the first and second respondents before their Lordships’ Board.


Cases

Port Otago Ltd v Hall [1998] 2 NZLR 152

Legislations

Fisheries Acts 1983 & 1996: s.6, ss.67I-67S

Resource Management Act 1991: s.12, s.30, s.122, s.150E


all rights reserved