The appellant, William Framhein, a resident of the Cook Islands, carries out the duties and responsibilities of his father who holds the title of Apai Mataiapo, one of the traditional leaders of the Cook Islands. The appellant brings his claim against the respondent Attorney-General, sued on behalf of the Crown and the Minister of Marine Resources. He challenges three decisions that have been taken by the Minister, concerned with the scale of fishing for tuna in the seas which comprise the Cook Islands Exclusive Economic Zone (EEZ). The proceedings raise two separate but related sets of issues. The first is the role of Akono'anga Maori, the customary law of the Cook Islands as it relates to the conservation and management of fishing stocks in Cook Islands waters, and also the role of the traditional leaders of the Cook Islands, the Aronga Mana, as the exponents of that custom. The second set of issues concerns the relationship between the Cook Islands law-making process carried out pursuant to the Marine Resources Act 2005 in promulgating the Fishing Plan and relevant Regulations, and the work of the international fora in which fishing nations, including the Cook Islands, co-operate to manage and control the utilisation of the natural resources of the Pacific Ocean.

Mr Framhein’s claim was heard by Potter J in the High Court. She refused any relief and dismissed his claims (see CMI1131). Mr Framhein appealed to the Court of Appeal. The Court differed from Potter J on the question whether the material considered by the Minister and Secretary amounted to compliance with the Crown's environmental impact assessment (EIA) obligation. The Court held that it did not, and that the first ground of Mr Framhein’s appeal succeeded. The Court also allowed Mr Framhein's appeal on the question of the application of the precautionary approach. However, the Court dismissed his appeal regarding the obligation to consult the Aronga Mana. The Court then considered the question of relief and declined to set aside the Minister's decisions. The Court declared that the respondent had failed to fulfil the EIA obligation and to apply the precautionary approach. The Court also ordered the respondent within 12 months to obtain, examine, and consider an EIA, and set out certain matters that must be addressed in that exercise (see CMI1132).

Mr Framhein appealed against the judgment of the Court of Appeal in so far as it held that there was no custom of the Aronga Mana that formed part of the law of the Cook Islands binding the Minister to consult with the Aronga Mana before adopting the decisions. He also appealed against the decision that the Aronga Mana are not 'key stakeholders' for the purposes of the Fishery Plan. There is no appeal against the Court's refusal to set aside the Minister's decisions. The Crown lodged a cross-appeal. The Crown appealed against the Court of Appeal's conclusion that it was under an EIA obligation either under international or domestic law before adopting the decisions and against the finding that, when adopting the decisions, the Minister failed to apply the precautionary approach as required under international and domestic law. There was no appeal by the Crown against the decision that the Minister was in breach of the Fishery Plan by failing to carry out biennial reviews.

Held: Mr Framhein's appeal is dismissed; the Crown's counter-appeal is upheld.

It is important to set what has been done in the Cook Islands in the context of the worldwide control of fishing. The foundational international treaty is the United Nations Convention on the Law of the Sea 1982 (UNCLOS). UNCLOS covers a range of issues, including delineating the scope of coastal States' sovereignty over their territorial seas and their rights over the seas beyond those territorial seas. Part V of UNCLOS establishes the EEZ as an area beyond and adjacent to the State's territorial sea. The EEZ does not extend beyond 200 nautical miles from the baselines from which the breadth of the territorial sea is measured: art 57. Article 55 provides that the EEZ is subject to the specific legal regime established in that Part. According to art 56, the rights of the coastal State in its EEZ include 'sovereign rights for the purpose of exploring and exploiting, conserving and managing the natural resources, whether living or non-living, of the waters superjacent to the seabed'. Article 63.2 of UNCLOS deals with fish stocks occurring within the EEZ of a coastal State and in an area of high seas beyond and adjacent to the EEZ. It provides as follows:

Where the same stock or stocks of associated species occur both within the exclusive economic zone and in an area beyond and adjacent to the zone, the coastal State and the States fishing for such stocks in the adjacent area shall seek, either directly or through appropriate subregional or regional organizations, to agree upon the measures necessary for the conservation of these stocks in the adjacent area.

Article 64 deals specifically with fish that are highly migratory species listed in Annex I to UNCLOS. These include albacore, bigeye, skipjack, yellowfin, and four other species of tuna. It provides:

1. The coastal State and other States whose nationals fish in the region for the highly migratory species listed in Annex I shall cooperate directly or through appropriate international organizations with a view to ensuring conservation and promoting the objective of optimum utilization of such species throughout the region, both within and beyond the exclusive economic zone. In regions for which no appropriate international organization exists, the coastal State and other States whose nationals harvest these species in the region shall cooperate to establish such an organization and participate in its work.

2. The provisions of paragraph 1 apply in addition to the other provisions of this Part.

Article 64 therefore contemplates that coastal States and other States who want to fish for tuna either in the EEZ of a coastal State or on the high seas must co-operate directly or through international or regional organisations as to how such fishing is to take place.

The UNCLOS framework has been supplemented by the World Tuna Agreement, the Pacific Tuna Convention, the WCPF Commission, and the CMM 2012-01. The Fishery Plan and the Regulations are the domestic means by which the Cook Islands fulfils its obligation as a member of the WCPF Commission to declare its effort limit under para 14 of CMM 2012-01 and implement the other elements in the CMM which are binding on the Cook Islands as a member of the WCPF Commission. The question for the lower Courts and now for the Board is this: when the Cook Islands establishes its limits for purse seine fisheries within its EEZ pursuant to para 14 of the CMM 2012-01, is it obliged under international or domestic law to carry out an EIA before adopting the decisions which implement CMM 2012-01 in the Cook Islands EEZ?

There were a number of sources from which Court of Appeal derived the EIA obligation. These include art 206 in Part XII of UNCLOS which deals with the protection and preservation of the marine environment. Part XII it is not concerned with regulating fishing but with controlling pollution and similar causes of damage to the marine environment. Section 1 of Pt XII requires States to take 'individually or jointly as appropriate, all measures consistent with this Convention that are necessary to prevent, reduce and control pollution of the marine environment from any source': art 194. Section 2 requires States to co-operate on a global or regional basis through international organisations to formulate rules and standards for protecting the marine environment. Clearly these are different organisations from those set up under Pt V concerning fish. There are parallel provisions about programmes of scientific research and about exchange of data and information about pollution (arts 200 and 201). Article 206 forms part of s 4 of Pt XII headed 'Monitoring and Environmental Assessment'. Section 5 of Part XII then requires States to adopt laws to prevent, reduce and control pollution from various sources including land-based sources (art 207); seabed activity (art 208), dumping (art 210), or from vessels (art 211). The Court of Appeal noted at para 38 that it had been common ground before Potter J both that art 206 of UNCLOS applied and that the threshold was met because the Fishery Plan might cause significant and harmful changes to the marine environment. In the Board's judgment any such concessions by the Crown were wrong. When one looks at art 206 in context, it is clear that it has nothing to do with fish or the possible depletion of fishing stocks. That is dealt with in Pt V. One must read the phrase 'significant and harmful changes to the marine environment' in art 206 as covering the kind of damage, in addition to pollution, that is the subject matter of Pt XII. That same phrase is used, for example, in art 196 which requires States to control the intentional or accidental introduction of alien or new species 'which may cause significant and harmful changes' to the marine environment. Article 206 of UNCLOS does not apply to decisions taken by members of the WCPF Commission relating to conservation and management measures established pursuant to arts 63.2 and 64 of UNCLOS, Pt III of the World Tuna Agreement and Pt III of the Pacific Tuna Convention. It did not therefore impose any obligation on the Cook Islands Ministry to carry out an EIA before adopting the Fishery Plan or the Regulations.