The applicants for the case, that is, the parties suing the government, were the traditional leaders of Te Au o Tonga and Te Ipukarea Society. The case was brought against the Attorney General, the Minister of Marine Resources and the Secretary of Marine Resources, all representing the government. The case alleged three main failures by government in entering into the fishing agreement with the EU.
1. Failure, in breach of the Marine Resources Act (MRA), to act in a manner consistent with international law, and in particular the customary international law obligation to
carry out an environmental impact assessment.
2. Failure to comply with the precautionary approach when deciding upon the conditions of the Agreement, again in breach of the MRA. This includes a failure to have proper regard to the impact of the decisions on by-catch species, and on artisanal and subsistence fishers.
3. Failure, in breach of traditional Maori custom and the MRA, to consult the Aronga Mana in making the decisions. Article 66A(3) of the Cook Islands Constitution provides that custom has effect as part of the law of the Cook Islands until such time as an act provides otherwise. As a matter of custom, the Aronga Mana are Tiaki (guardians) of the Moana (sea) and Kai Moana (seafood resources) and are required to be consulted in relation to fisheries matters, and the MRA does not exclude that custom.
For each of these three failures, the Applicants have asked the court to declare the Regulations, Fishery Plan and the EU Partnership Agreement to be null and void.
Day 1 of the court case on July 3 saw the lawyers for the Aronga Mana of Te Au o Tonga and Te Ipukarea Society present arguments based around the science and the precautionary principle.
The morning of next day, saw the applicants’ lawyers continue with arguments around lack of consultation with the Aronga Mana. In the afternoon, and all of the next day, the government’s Crown Law lawyers had their opportunity to present their submissions and their rebuttal to the applicants’ lawyers.
The court case wrapped up on Thursday morning with the lawyers for the Aronga Mana and Te Ipukarea Society responding to the final comments by the government’s lawyers. The judge closed by reserving her decision, saying that she has been given a lot to think about from both sides.
She gave no indication how long the decision may take, but we do not expect any news for several months at least. However, we feel we have presented a very strong case and are hopeful of a positive outcome.
Te Ipukarea Society and the Aronga Mana of Te Au o Tonga, and elsewhere throughout the Cook Islands would like to express their sincere appreciation to the lawyers Isaac Hikaka and Jack Cundy, acting on behalf of the applicants.
These two gentlemen invested an incredible amount of time, effort and dedication into the case.