This is an appeal against a judgment of Potter J given on 15 December 2017 (see Framhein v Attorney-General (CMI1131)) declining to grant the applicants any relief in respect of the orders sought. The relief sought related to the Cook Islands Government's move to increase and expand its purse seine fishery for skipjack tuna in the Cook Islands Exclusive Economic Zone (EEZ).

Held: the Court makes the following declarations:

(a) The respondent has failed in its obligation to conduct an environmental impact statement so as to act in a manner consistent with the Cook Islands international and regional obligations relating to the conservation and management of living and non-living resources in the fishery waters.

(b) The respondent has failed in its obligation to apply the precautionary approach when enacting the Regulations and entering into the Fishery Plan and Partnership Agreement.

(c) Consistent with its obligation under paragraph 21 of the Fishery Plan to conduct a biennial review, within 12 months of the date of this judgment, the Government of the Cook Islands is directed to obtain, examine and consider an EIA in accordance with the requirements of s 36(3) of the Environment Act (which sets out what Parliament considers to be required by an EIA).

(d) Without in any way restricting the matters to be taken into account when carrying out the EIA, the following matters must be addressed:

(i) The impact of the project upon the environment and in particular:

1. The adverse effects that the project will have on the environment;

2. a justification for the use or commitment of depletable or non-renewable resources (if any) to the project;

3. a reconciliation of short-term uses and long-term productivity of the affected resources;

(ii) The proposed action to mitigate adverse environmental effects and the proposed plan to monitor environmental impacts arising out of the project; and

(iii) The alternatives to the proposed project.

(e) In accordance with Articles 205 and 206 of UNCLOS, the Government of the Cook Islands is directed to publish reports of the results of the EIA to the competent international organizations (including the WCPFC), which should make them available to all States.

(f) The Minister for the Environment is directed to give public notice that the EIA is available for inspection on the official website of the Ministry of Marine Resources and publish it accordingly.

The appellants gave five reasons for the submission that international law required an Environmental Impact Assessment (EIA) in this case, namely:

(a) Article 206 of the United Nations Convention on the Law of the Sea 1982 (UNCLOS) states:

When States have reasonable grounds for believing that planned activities under their jurisdiction or control may cause substantial pollution or significant and harmful changes to the marine environment, they shall, as far as practicable, assess the potential effects of such activities on the marine environment and shall communicate reports of the results of such assessment in the manner provided in Article 205.

The obligation in Article 205 is to publish reports of the results obtained or provide such reports at appropriate intervals to the competent international organisations, which should make them available to all States.

(b) Customary international law requires an EIA to be undertaken. That requirement, based on two decisions of the International Court of Justice and an expert opinion from Dr Miles of Cambridge University, is to undertake an EIA where there is a risk that the proposed activity may have a significant adverse impact in a transboundary context, and in particular, on resource shared by more than one State.

(c) The terms of the Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks (UNSFA). Reliance is placed on art 5 of UNSFA.

(d) The terms of a Convention on the Conservation and Management of Highly Migratory Fish Stocks in the Western and Central Pacific Ocean (4 September 2000) (WCPO Convention).

(e) Section 36(3) of the Cook Islands Environment Act 2003 (Environment Act) which requires an environment impact assessment in respect of every application for a project permit. This submission is based on domestic law and not international law.

It is convenient to consider this issue by determining first what the Cook Islands treaty obligations required of it, as a prerequisite to entering into the decisions; secondly, whether international customary law required further action; and lastly, whether s 36 of the Environment Act altered in any respect those requirements.

The Cook Islands signed UNCLOS on 10 December 1982 and ratified it on 15 February 1995. It came into effect in the Cook Islands on 17 March 1995. Its preamble confirms that matters not regulated by UNCLOS continue to be governed by the rules and principles of general international law. At its inception, UNCLOS codified the existing customary international law and created new rights and obligations. Part V refers to EEZs and Article 55 provides that an EEZ is 'subject to the specific legal regime established in this Part, under which the rights and jurisdictions of the coastal State and the rights and freedoms of other States are governed by the relevant provisions of this Convention'.

Skipjack tuna is defined in Annex I of UNCLOS as a 'highly migratory species'. Article 64 provides that States whose nationals fish for highly migratory species in the region 'shall co-operate directly or through appropriate international organisations with a view to ensuring conservation and promoting the objective of optimum utilisation of such species through the region, both within and beyond the EEZ'.

Article 206 of UNCLOS requires a State which has reasonable grounds for believing that a planned activity under its jurisdiction or control may cause significant and harmful changes to the marine environment to 'as far as practical, assess the potential effects of such activities on that environment and communicate reports of the results as required by Article 205'. Neither party disputed that the prerequisite of having reasonable grounds for believing that the extension of the purse seine fishery may cause significant and harmful changes to the marine environment had been reached. The Cook Islands’ obligations under Article 206 of UNCLOS, if there were reasonable grounds for believing the activity may cause significant and harmful changes to the marine environment were as far as practicable:

(a) to assess the potential effects of the extension of the purse seine fishery on the marine environment; and

(b) to report the results of that assessment to the competent international organisations, which would obviously include the Western Central Pacific Fisheries Commission (WCPFC).

The Cook Islands ratified UNSFA on 1 April 1999. It entered into force on 11 December 2001. UNSFA is an agreement for the implementation of UNCLOS, relating to 'the conservation and management of straddling fish stocks and highly migratory fish stocks'. All parties affirmed in the agreement that the matters covered by UNCLOS and UNSFA 'continue to be governed by the rules and principles of general international law'. The Cook Islands was at the relevant time a party to UNSFA.

The assessment requirements under art 206 UNCLOS impose a general obligation to carry out an assessment in certain circumstances. UNSFA has specific requirements in respect of highly migratory fish stocks and the WCPO Convention materially applied the same provisions to the WCPO which includes the Cook Islands EEZ. The objective of UNSFA is stated to be 'to ensure the long-term conservation and sustainable use of fish stocks such as skipjack tuna', while the objective of the WCPO Convention is to ensure the long-term conservation and sustainable use of highly migratory fish stocks.

When the respondent’s obligations under UNSFA and the WCPO Convention to make an assessment are considered against an EIA required under international customary law, there is very little material difference between the two. An EIA under international customary law requires consideration on the likely adverse impact on the environment. Under art 206, if it applies it is necessary to 'assess' the potential effects of such activities on the marine environment. It is difficult to see that 'considering the likely adverse impact on the environment', differs in any substantive way in respect of adverse effects from 'assessing the potential effects of such activities on the marine environment'.

The first ground of appeal succeeds, namely the respondent failed to carry out an EIA in respect of the proposed extension of purse seine fishing and, as a result, failed to act in a manner consistent with the Cook Islands' international obligations, as required by s 5 of the Marine Resources Act 2005.

[For the appeal and counter-appeal to the Privy Council, see Framhein v Attorney-General of the Cook Islands [2022] UKPC 4 (CMI2145).]