By: Amanda Douglas
The Society issued judicial review proceedings, on a number of grounds, which broadly fell into two questions for resolution:
  1. Did the Minister misapply the test in section 5(6)(d) of the Marine Reserves Act 1971 (the "MRA")?
  2. Was it open for the Minister to find that the proposed marine reserve would interfere unduly with or adversely affect any existing usage of the area for recreational purposes?
The decision-making process under the MRA differs to processes under the RMA. The Minister, once receiving an application for a marine reserve, notifies the application. Any person may then lodge a written objection to the application. The Applicant has the opportunity to reply to any objection lodged. The Minister then decides whether any of the objections should be upheld, for the reasons set out in section 5(6). Those include whether the application will:
  1. Interfere unduly with any estate or interest in land in or adjoining the proposed reserve:
  2. Interfere unduly with any existing right of navigation:
  3. Interfere unduly with commercial fishing:
  4. Interfere unduly with or adversely affect any existing usage of the area for recreational purposes:
  5. Otherwise be contrary to the public interest.
If any of the objections is upheld, then the application is turned down. If none of the objections is upheld, the Minister may grant the application.

Grounds of review
The Society contended that the Minister took too narrow a view of the s 5(6) matters, by dividing matters into discrete assessments rather than taking a big picture view. In addition, the Society argued that the Minister took into account the adverse cumulative effects on recreational usage of the area. The Society stated that the Minister should have considered the full merits and effects of the application, including "spill-over" benefits beyond the reserve, as well as the cumulative effects.

The Society further argued that the Minister did not have sufficient information to make her decision. It submitted that the information supporting the objections was "of poor quality, uncertain, inconsistent, open to bias and unsubstantiated."[1]

Justice Whata's findings
Justice Whata found that the Minister's consideration under section 5(6) was too narrow. He stated in his decision that, under section 5(6), there is no constraint on the areal extent of the benefits of the proposed reserve that might be relevant to the assessment of whether the interference or effect is undue or unjustified. The Minister must be satisfied that the adverse effect would be both excessive and unjustified. His Honour noted that "it cannot be that any scale of adverse effect on any existing recreational use triggers the requirement to uphold an objection"[2], because that would leave little opportunity for marine reserves where there is recreational fishing. This would not achieve the purpose of the MRA. His Honour found that the "relevant threshold for "adversely affected" is whether or not there is an excessive and unjustified adverse effect on existing recreational activity. This requires not only an inward looking, net recreational benefit analysis, but consideration of the wider merits of the reserve and the extent to which it serves the statutory purpose."[3]

His Honour identified that the flaw in the Minister's reasoning was the failure to properly assess whether the interference with the existing use of the area, or adverse effect, was unjustified. While a final conclusion about the benefits of the proposed reserve could be carried out at a later stage of the test, at this stage there is an assessment of whether those adverse effects are justified. This should consider the wider merits of the reserve and the extent to which the application serves the statutory purpose of the MRA.

His Honour did not find that the information was inadequate, and stated that the Society had had the opportunity in its reply to objections to make that point. The Minister was entitled to rely on the information provided in the application, objections, reply, and the other reports that had been commissioned from the Director-General of Conservation.

Justice Whata granted relief and referred the decision back to the Minister for reconsideration, with some direction as to the assessment to be carried out under section 5(6) of the MRA. It will be interesting to see what decision the Minister returns.

[1] Akaroa Marine Protection Society Inc v Minister Of Conservation [2012] NZHC 933, at [30].
[2] Akaroa Marine Protection Society Inc v Minister Of Conservation, at [58].
[3] Akaroa Marine Protection Society Inc v Minister Of Conservation, at [60].

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