The tiny island that won

Motiti Island

Environmentalists and residents of a small island are celebrating a ‘‘significant’’ court win in their bid to protect fish and seabirds.

Six elderly kuia and kauma¯ tua from Motiti Island took on the combined might of the Crown, local government, powerful iwi and the fishing industry.

The tiny hapu¯ , backed by Forest and Bird, won ‘‘groundbreaking’’ rulings in the Environment and High Courts in 2017 that gave local councils powers to regulate fishing to protect native species. But the Government appealed the decision.

Now the Court of Appeal has ruled regional councils can use the Resource Management Act to control fishing to protect biodiversity.

‘‘It it is absolutely significant,’’ said Forest and Bird lawyer Peter Anderson. ‘‘It opens up a whole different range of methods of protecting biodiversity that haven’t been utilised.’’

Hugh Sayers, a spokesman for the Motiti Rohe Moana Trust (MRMT), which brought the action, said it was ‘‘good news’’ for Motitians. ‘‘The Government has dragged this out to drain us.’’

One of the eldest members of the MRMT, Kataraina ‘‘Bunty’’ Keepa, 88, feared she would die before the case was resolved. ‘‘[They] were hoping we would die or go away.’’

At the heart of the legal battle was a perceived conflict between the Resource Management Act and the Fisheries Act, which allows the

Kataraina ‘‘Bunty’’ Keepa, 88

Ministry of Primary Industries (MPI) to regulate regarding the management of fish stocks.

MRMT wanted the Bay of Plenty Regional Council to prohibit fishing in the waters around Motiti. But the Government, MPI and the fishing industry said that interfered with the Fisheries Act.

The Court of Appeal has found there is overlap between the two acts.

The decision also sets out five indicators councils must consider when looking to control fishing. They cannot distinguish between recreational and commercial fishing when setting out restrictions.

The trust and the Bay of Plenty Regional Council are mediating over appropriate fishing controls to be put in the District Plan. Once that is settled, the conservation minister must sign off on the plan.

The container ship MV Rena hit O¯ ta¯ iti (Astrolabe Reef) in October 2011, spilling 350 tonnes of oil and affecting countless fish and up to 20,000 seabirds. To allow salvage work to take place, Tauranga’s harbourmaster put in place an exclusion zone around the wreck.

With little to disturb the waters, marine life began to flourish again. But when it was lifted, overfishing of crayfish and snapper allowed kina to flourish and destroy kelp forests that nourish other species, creating kina barrens.

In 2016, the MRMT – formed by a group of islanders – asked MPI to extend that protection with a twoyear temporary closure of the reef to all fishing: a rahui. ThenFisheries Minister Nathan Guy refused. He argued the trust did not have the support of ‘‘tangata whenua’’, infuriating the hapu¯ .

In the experimental case, the hapu¯ teamed up with Forest and Bird to argue that the Bay of Plenty Regional Council could use the Resource Management Act to impose marine protection controls, such as a ban.

Both the Environment Court and the High Court agreed with the islanders. The Environment Court judges’ acknowledged that ‘‘they have without a doubt established mana whenua over their lands on Motiti and mana moana over O¯ ta¯ iti’’. But MPI appealed.

In June last year, Fisheries Minister Stuart Nash said he backed the appeal because he said the law needed to be clarified. He threatened to take the fight all the way to the Supreme Court.

The islanders are fighting not only to reclaim identity and mana, but also to take back control of the island. They want to halt years of neglect and environmental degradation, and return Motiti to a thriving economy and community.

The island is wholly privately owned and does not fall under any local authority council and so islanders do not pay rates. But they also receive no services.

The Minister of Local Government (currently Nanaia Mahuta) is a kind of nominal mayor, with dayto-day administration handled by the Department of Internal Affairs.

To residents, Internal Affairs is neglectful and a thorn in their side. Since the 1990s, islanders have been battling Wellington officials over the future of the island. Who administers it, who cares for it, who is allowed to benefit from its resources, and who pays?

The Motitians also want the Government to formally recognise their mana whenua.

‘‘[They] were hoping we would die or go away.’’