IN THE MATTER BETWEEN. Judges JA Smith and DA Kirkpatrick. At Auckland on 18 October 2017

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1 BEFORE THE ENVIRONMENT COURT [2017] NZEnvC \"l'l IN THE MATTER AND BETWEEN of the Resource Management Act 1991 of an appeal pursuant to Clause 14 of the First Schedule of the Act MOTITI ROHE MOANA TRUST (ENV-2015-AKL ) Appellant AND BAY OF PLENTY REGIONAL COUNCIL Respondent Court: Hearing: Appearances: Judges JA Smith and DA Kirkpatrick At Auckland on 18 October 2017 Mr R Enright for Motiti Rohe Moana Trust, and as agent for Royal Forest & Bird Protection Society of New Zealand Inc Ms A Neems for Ngati Makino Heritage Trust, Ngati Ranginui Iwi Incorporated Society Ms M Hill for Bay of Plenty Regional Council Mr J Prebble and Mr N Anderson for the Attorney-General Ms K Jordan for Carrus Corporation, Motiti Avocados Limited and Others Mr S Ryan for Lowndes Date: WAIVER DECISION, DIRECTIONS AND MINUTE OF THE ENVIRONMENT COURT (18 October 2017) Motiti Rohe Moana Trust v Bay of Plenty Regional Council

2 2 A. A waiver is granted for the Attorney-General, for the Crown, to file a late s 274 notice in respect of this appeal. The waiver is granted and the Crown is admitted as a s 274 party to proceedings, although it is bound by all existing directions, and evidence may only be produced in relation to: (a) (b) (c) (d) (e) the inter-related and overlapping nature of many sustainable concerns being addressed in the Bay of Plenty region and district; the specialised knowledge required to appropriately regulate fisheries resources in the Bay of Plenty Region; and how the Fisheries Act can be used to provide specific restrictions in and around the Motiti area, the subject of this appeal; how carefully and specially calibrated Fisheries Act regime can be undermined by overlapping regional council regulation and proposed marine spatial provisions within the Bay of Plenty could have problematic ramifications for coherent fisheries regulation by the Ministry; and how overlapping Bay of Plenty Regional Council control functions of Fisheries Regulation could undermine various mechanisms implementing the Treaty of Waitangi (Fisheries Claim) Settlement Act The Crown may call two witnesses, A Hill and D Freeman in relation to these matters. B. The following waivers and directions were also made: (i) (ii) the evidence of D Lucas for MRMT may be filed by 6 November 2016, and the Bay of Plenty Regional Council may file rebuttal evidence if it wishes by 20 November 2017; all parties agree that the hearing of this matter will be accommodated within the 5-7 working days available.

3 3 REASONS FOR DECISION I ntrod uction [2] This matter is subject to Directions for a hearing commencing in the week of 27 November and following on the week of 4 November (up to two days). [3] The Crown has filed an application to join these proceedings as a s 274 party, filing its application some two years after the commencement of the appeal, and nearly one year after its involvement in related declaration proceedings. [4] During the telephone conference to address this application the MRMT also sought: (a) to call D Freeman, from the Department of Conservation; and (b) to extend the time for the filing of evidence of D Lucas due to her suffering a serious accident. The leave application [5] Section 281 of the Act provides that the Court may grant a waiver in respect of the filing and service of any matter, provided it is satisfied that no parties to the proceedings will be unduly prejudiced. [6] Even then, the Court has a general discretion as to whether to grant such an application. [7] In relation to undue prejudice, no party argued this issue strongly. It is axiomatic to that position that the Crown acknowledged that if it participated in these proceedings it would be bound by the existing directions and would need to file its evidence by 6 November 2017 and proceed to the hearing on 27 November Its involvement so late in these proceedings is predicated upon that concession. [8] Furthermore, the Crown acknowledged that it would need to ensure that its evidence was tightly focussed on the issues in question relating to the inter-relationship overlapping between the RMA and Fisheries legislation. An affidavit of Andrew Francis Hill suggested areas of evidence. After some discussion, it was agreed that relevant evidence could be produced relating to:

4 (a) (b) (c) (d) (e) 4 the inter-related and overlapping nature of many sustainable concerns being addressed in the Bay of Plenty region and district; the specialised knowledge required to appropriately regulate fisheries resources in the Bay of Plenty Region; and how the Fisheries Act can be used to provide specific restrictions in and around the Motiti area, the subject of this appeal; how carefully and specially calibrated Fisheries Act regime can be undermined by overlapping regional council regulation and proposed marine spatial provisions within the Bay of Plenty could have problematic ramifications for coherent fisheries regulation by the Ministry; and how overlapping Bay of Plenty Regional Council control functions of Fisheries Regulation could undermine various mechanisms implementing the Treaty of Waitangi (Fisheries Claim) Settlement Act 1992; and that the Crown may call two witnesses, A Hill and D Freeman in relation to these matters. [9] It was noted that all of this would need to be related to the Marine Spatial Planning provisions brought in this case and be specific rather than in relation to generalised powers.1 [10] It was acknowledged that the hearing was being conducted on the presumption that the Court did have powers, depending on the particular circumstances. Although leave to appeal to the Court of Appeal has been sought in relation to the High Court decision on this matter, to date that leave has not been granted. [11] Mr Enright and Ms Neems acknowledged that, with those constraints, a number of their particular concerns were addressed. They did, however, wish to reserve the power to challenge admissibility of evidence and/or the weight to be given to that evidence as part of the hearing. We conclude that leave is granted on this basis. We The Court notes that several recent matters may be relevant: (a) Hauraki Gulf Marine Spatial Planning Documents (non statutory) developed recently and; (b) The Goat Island Sanctuary Study just published in relation to Gulf snapper stocks. (c) The Coastal/Marina plans/controls for NZ offshore islands (including Kermadec and Auckland islands).

5 5 are satisfied that with these conditions there is no undue prejudice. Furthermore, the evidence of the Crown on the matters identified is relevant to the hearing. Although there is no proper excuse for the delay, we nevertheless conclude that this is a novel and important proposition, which should be fully aired. The evidence of Ms Freeman [12] The Court then went on to identify the number of witnesses for each party. The Motiti Rohe Moana Trust, Royal Forest & Bird and Bird, Ngati Makino Heritage Trust, and Ngati Ranginui Incorporated Society are to provide a list of witnesses to the Court by 4.00pm on Thursday 19 October At this stage it is anticipated there would be up to 12 witnesses for MRMT, up to 2 for Forest & Bird, and no witnesses for Ngati Makino. [13] The Regional Council, at this stage, only intend to call 2 witnesses: Ms de Luca (on marine biology) and Ms Noble (planner); for the Attorney-General, Mr A Hill and also Ms Freeman based on an intimated application for summons made by Mr Enright (MRMT); Ngati Makino, Motiti Avocado and Drs intend to have 1 planning witness. Lowndes have no evidence. Ms Lucas evidence [14] Ms Lucas suffered an accident recently and Mr Enright had circulated to the parties the medical certificate in relation to this. There was no dispute as to Ms Lucas filing her evidence on landscape and cultural overlays by 6 November. It is unlikely that the Regional Council would wish to file rebuttal evidence, however leave is reserved for them to do so until 20 November Ms Freeman [15] Ms Freeman gave evidence in relation to the Rena application for the Department of Conservation. Mr Enright sought leave to have her summonsed as a witness so that she could produce the brief of evidence given to the special hearing panel at that stage. In those circumstances, Mr Prebble agreed that it was more appropriate that she be called by the Crown. Accordingly she has been included in the Crown's witness list although her purpose appears to be largely to answer questions from Mr Enright.

6 6 [16] The Crown is confident that its case is unlikely to lengthen the hearing by more than half a day, and on this basis we are confident that the matter will still be able to be accommodated within the seven days of hearing time available. [17] The parties are reminded to keep these estimates in mind when preparing both submissions and cross-examination. Any discussions concerning preliminary arrangements, (ie karakia etc), should be directed to Janice King (Janice.king@justice.govt.nz) who will be Registrar for the hearing. DA Kirkpatrick Environment Judge