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Fiordland Marine Management Bill (Consistent) (Sections 5, 20) [2004] NZBORARp 43 (8 December 2004)
Last Updated: 27 March 2021
Fiordland Marine Management Bill
8 December 2004
Attorney-General
LEGAL ADVICE
CONSISTENCY WITH THE NEW ZEALAND BILL OF RIGHTS ACT 1990:
Fiordland Marine Management Bill
- We
have considered whether the Fiordland Marine Management Bill 2004 (PCO 6255/8)
is consistent with the New Zealand Bill of Rights
Act 1990 (the "Bill of Rights
Act"). This version of the Bill is to be introduced into the House on 9 December
2004.
- The
Bill raises prima facie issues of inconsistency with section 20 (rights
of minorities). We have come to the conclusion that to the extent the Bill
limits
this right those limitations appear to be justifiable in terms of section
5 of the Bill of Rights Act.
- The
Bill therefore appears to be consistent with the Bill of Rights
Act.
Overview of the Bill
- The
Bill does two things. Firstly, it establishes a geographic entity known as the
Fiordland Marine Area over which the Bill applies
("the FMA"). Secondly, it
gives effect to aspects of the Fiordland Marine Conservation strategy – a
strategy developed by a
locally-based society that is representative of all
major stakeholders who have an interest in the Fiordland marine environment.
- To
give effect to the strategy the Bill:
- creates eight
Marine Reserves (a total area of nearly 10,000 hectares) with special
conditions;
- amends the
proposed Southland Regional Coastal Plan as it applies to Fiordland;
- creates the
Fiordland Marine Guardians Advisory Committee;
- requires the
Ministers and government departments responsible for resource management,
fisheries and marine reserves, and Environment
Southland to recognise and have
regard to the advice of the Fiordland Marine Guardians Advisory Committee;
and
- requires a
review of the effectiveness of the management measures to be undertaken after 5
years.
- The
FMA will also be subject to the Marine Reserves Act 1971, although any necessary
modifications will apply.
Relevant provisions of the Bill of
Rights Act
- The
Bill gives rise to prima facie issues of inconsistency with section 20 of
the Bill of Rights Act.
- Section
20 provides:
A person who belongs to an ethnic, religious, or
linguistic minority in New Zealand shall not be denied the right, in community
with
other members of that minority, to enjoy the culture, to profess and
practise the religion, or to use the language, of that minority.
- We
consider that a limit on a right can be justified in terms of section 5 of the
Bill of Rights Act where it meets a significant
and important objective, and
where there is a rational and proportionate connection between the limitation on
the right and that
objective.[1]
Section
20 – rights of minorities
- Schedule
2A stipulates certain general conditions that are attached to specific
activities that occur within the FMA. Clause 1, for
example, places conditions
on the removal of pounamu, whilst clause 2 places similar conditions on the
taking of dead marine mammals.
- As
restrictions on the collecting and taking of pounamu and marine mammals appear
to infringe Māori customary practices, Schedule
2A appears to be
inconsistent with section 20 of the Bill of Rights Act.
- Section
20 affirms the right of
minorities[2] not to be
denied their right to engage in cultural
activities.[3]
- The
United Nations Human Rights Committee has observed that
culture:
"...manifests itself in many forms, including a particular
way of life associated with land resources, especially in the case of indigenous
peoples. That right may include such traditional activities as fishing or
hunting..."[4]
- Although
Clauses 1 and 2 of Schedule 2A do not constitute a total denial of the right of
Māori to engage in customary practices,
we consider these provisions limit
the right to engage in this activity. In coming to this view we note that under
the Ngai Tahu
(Pounamu Vesting) Act 1997 pounamu vests in and becomes the
property of Te Runanga o Ngai Tahu. We also note that 3 types of whale
are
listed in schedule 97 of the Ngai Tahu Claims Settlement Act as being the taonga
of Ngai Tahu. We have therefore gone on to consider
whether this limit can be
justified under section 5 of the Bill of Rights Act.
Significant
and important
- Fiordland
is a globally unique marine environment that contains both exceptional marine
biodiversity and valuable marine resources.
The Fiordland marine environment is
also an important economic area, but one that faces an escalation in human
activity. It has been
determined that the marine area of Fiordland needs careful
management at a local level to ensure the preservation of all resources.
- Therefore
resources must be managed for use, development and protection, with a
requirement to meet the needs of future
generations.[5] We
consider this to be an important and significant
objective.
Rational and proportionate response
- Activities
within the marine environment are subject to a number of regulatory controls
that are imposed with the aim of preserving
the environment and preserving
resources. The restrictions on the collection and harvesting of pounamu and
marine mammal body parts
are consistent with these objectives. The government
has a legitimate interest in regulating the marine area by subjecting all forms
of activity, whether customary or not, to a regime (in this case the Resource
Management Act 1991 and the Crown Minerals Act 1991)
on the basis that the
government is compelled to protect and conserve the environment of New Zealand.
- On
this point we note the comments of Cooke P in Ngai Tahu Māori Trust
Board v Director-General of
Conservation:[6]
"Clearly,
whatever version or rendering [of the Treaty of Waitangi] is preferred, the
first article must cover power in the Queen
in Parliament to enact comprehensive
legislation for the protection and conservation of the environment and natural
resources. The
rights and interests of everyone in New Zealand, Māori,
Pakeha and all others alike, must be subject to that overriding authority."
- We
also note that the Bill provides a number of mechanisms to protect customary
practices by:
- Providing a
regulatory framework that would allow a member of Ngai Tahu, who has the
required consents and approvals under clause
1(2), to collect pounamu, provided
that—
(a) they take no greater weight of pounamu
than that which they can carry on their own in one trip;
(b) they do not use machinery or cutting equipment to collect pounamu;
and
(c) the collection of pounamu must not disturb the foreshore, seabed, or
marine life in more than a minor way (Clause 1(3)).
- Permitting a
member of Ngai Tahu Whanui who has obtained a permit for this purpose in
accordance with clause 2(2), to take collect
bones, teeth, ivory, or ambergris
from a deceased marine mammal found within the FMA, provided that the material
is -
(a) naturally separated from a marine mammal; and
(b) have been found in a marine reserve established under the Bill (clause
2(3)).
- For
these reasons we therefore consider the measures used to achieve the objectives
listed above are rational and proportionate. It
follows that the provisions of
the Bill that might limit the rights affirmed in section 20 of the Bill of
Rights Act are justifiable
under section 5 of that
Act.
Conclusion
- We
have concluded that the provisions of the Bill appear to be consistent with the
rights and freedoms contained in the Bill of Rights
Act.
- In
accordance with your instructions, we attach a copy of this opinion for referral
to the Minister of Justice. Copies are also attached
for referral to the
Minister of Justice, the Minister of Conservation, and the Minister for the
Environment if you
agree.
Boris van Beusekom Senior Adviser Bill of Rights/Human Rights
Team
|
Allison Bennett Principal Legal Adviser Office of Legal Counsel
|
cc.
Minister of Justice
Minster for the Environment
Minister of
Conservation
Copy for your information
In addition to the general disclaimer for all documents on this website,
please note the following: This advice was prepared to assist
the
Attorney-General to determine whether a report should be made to Parliament
under s 7 of the New Zealand Bill of Rights Act 1990
in relation to the
Fiordland Marine Management Bill. It should not be used or acted upon for any
other purpose. The advice does no
more than assess whether the Bill complies
with the minimum guarantees contained in the New Zealand Bill of Rights Act. The
release
of this advice should not be taken to indicate that the Attorney-General
agrees with all aspects of it, nor does its release constitute
a general waiver
of legal professional privilege in respect of this or any other matter. Whilst
care has been taken to ensure that
this document is an accurate reproduction of
the advice provided to the Attorney-General, neither the Ministry of Justice nor
the
Crown Law Office accepts any liability for any errors or omissions.
[1] Moonen v Film
and Literature Board of Review [1999] NZCA 329; [2000] 2 NZLR
9
[2] In Mahuika v
New Zealand Communication No 547/1993, 15 November 2000, paragraph 9.3, the
HRC recorded that it had not been disputed by the New Zealand Government
that
Māori were, for the purposes of art 27 ICCPR, a ‘minority’. We
accept for the purposes of this opinion that
Māori would constitute a
‘minority’ under section
20.
[3] Te Runanga
O Whare Kauri Rekoku Inc v Attorney General HC Wellington, 12/10/92 CP
682/92. As noted above, the Waitangi Tribunal recognised Māori interests in
aquaculture.
[4] UN
General Comment 23, The Rights of Minorities para
3.2.
[5] See section
5(2) of the RMA for the full
definition.
[6]
[1995] 3 NZLR 553
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