Between 2013 and 2016, the Cook Islands Government made a series of decisions increasing the potential volume of purse seine catches within the Cook Islands’ exclusive economic zone (EEZ). The plaintiffs now seek a judicial review of those decisions. They say that the respondents' decision-making processes did not comply with the Marine Resources Act 2005, and did not comply with customary law as said to be required by art 66A(3) of the Constitution.

Held: All causes of action are dismissed.

Apart from domestic legislation, the Cook Islands fisheries regime is influenced by three international instruments:

(a) The United Nations Convention on the Law of the Sea (UNCLOS) is the head agreement governing, amongst other matters, States' rights to exploit and manage fishery resources within their EEZs. Article 64 of UNCLOS, read with Annex I, lists skipjack tuna, bigeye tuna and yellowfin tuna as species considered to be highly migratory.

(b) The Straddling Fish Stocks Agreement (SFS Agreement) formed part of the implementation of UNCLOS. It is aimed at ensuring the long-term conservation and sustainable use of straddling and highly migratory fish stocks. It provides for the establishment of regional fisheries management organisations to manage trans-boundary fish stocks.

(c) The Convention for the Conservation and Management of Highly Migratory Fish Stock in the Western and Central Pacific Ocean was established to implement the objectives of the SFS Agreement in the Western and Central Pacific Ocean region.

The applicants say that the respondents erred in law or acted under errors of law because they did not conduct an environmental impact assessment (EIA) when issuing the Regulations, Plan and Implementation Protocol.

The parties agree that s 3(3) of the Marine Resources Act 2005 requires decisions under the Act to be made in a manner consistent with the Cook Islands' international obligations. The parties also appear to accept the finding of the International Court of Justice in Pulp Mills on the River Uruguay (Argentina v Uruguay) (Judgment) [2010] ICJ Rep 14, 83, to the extent the Court recognised that customary international law requires states to conduct EIAs in certain circumstances. But they disagree as to whether the respondents adequately conducted an EIA in the present case.

Potter J agreed with the Solicitor-General that an EIA was sufficiently conducted through the respondents’ receipt and consideration of the various reports detailed in the judgment. She therefore dismissed this cause of action.

[For the successful appeal to the Court of Appeal, see Framhein v Attorney-General (CMI1132).]