William Framhein v Attorney General of the Cook Islands (Cook Islands)

The Attorney General’s case is at base that the Court of Appeal fundamentally misunderstood the international framework governing the fishing of tuna. They fell into error by failing to recognise that the Fishery Plan and the Regulations were only the final step in a long, multilateral negotiating process conducted at the international and regional level by which the balance between the commercial utilisation of fish stocks in the Western and Central Pacific Ocean against ensuring the sustainability of those stocks is struck. It is important therefore 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 concluded in 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: article 57. Article 55 provides that the EEZ is subject to the specific legal regime established in that Part. According to article 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 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:

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:

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 cooperate directly or through international or regional organisations as to how such fishing is to take place.

The international organisation through which states cooperate in respect of fishing for highly migratory fish such as tuna is the Agreement for the Implementation of the Provisions of UNCLOS relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks. We refer to this as the “World Tuna Agreement”, although it deals with other species of highly migratory fish as well. The World Tuna Agreement was concluded in New York in mid-1995. It was ratified by the Cook Islands on 1 April 1999 and it entered into force on 11 December 2001.

Article 2 of the World Tuna Agreement provides that the objective of the Agreement is to ensure the long-term conservation and sustainable use of straddling fish stocks and highly migratory fish stocks through effective implementation of the relevant provisions of UNCLOS.

Article 5 is particularly relevant in this appeal since it is one of the provisions which the Court of Appeal held imposed an EIA obligation on the Cook Islands Ministry before adopting the Decisions. This article will be considered in more detail later. Here it is enough to say that it sets out the general principles which apply to the states in giving effect to their duty to cooperate in accordance with UNCLOS. These include the need to ensure that measures adopted to ensure the long-term sustainability of fish stocks are based on the best scientific evidence; that they prevent or eliminate overfishing and excess fishing capacity and that they take into account the interests of artisanal and subsistence fishers.

Another of the general principles listed in article 5 is that states apply the precautionary approach. This is elaborated upon in article 6. Applying the precautionary approach includes an obligation to determine stock specific reference points in accordance with Annex II to the World Tuna Agreement. Annex II describes the kinds of precautionary reference points that must be set for each fish stock.

Article 7 of the World Tuna Agreement introduces the next tier of cooperation. As regards highly migratory fish like tuna, it requires all states wishing to fish in a particular region to cooperate “with a view to ensuring conservation and promoting the objective of optimum utilization of such stocks throughout the region, both within and beyond the areas under national jurisdiction.” The duty is to cooperate either directly or through the appropriate mechanisms for cooperation provided for in Part III. Part III of the World Tuna Agreement then provides more detail about the regional mechanisms for cooperation referred to in article 7(1).

Part III opens with article 8(1) which provides that states must pursue cooperation in relation to tuna “either directly or through appropriate subregional or regional fisheries management organizations or arrangements, taking into account the specific characteristics of the subregion or region, to ensure effective conservation and management of such stocks”. Article 8(3) provides:

The importance of participating in the regional cooperation mechanisms is made clear by article 8(4). This provides that only those states which are members of or participate in those regional arrangements or which agree to apply the conservation and management measures established are allowed to fish in the waters to which the measures apply. Article 8(5) provides that where there is no existing regional fisheries management organisation (“RFMO”) in place to establish conservation and management measures for a particular highly migratory fish species, the relevant states must set one up.

The World Tuna Agreement then sets out detailed provisions about the establishment and operation of RFMOs. The members setting up an RFMO for a particular fish stock must agree the kind of fish to be covered, the area of application and the mechanisms by which the organisation will obtain scientific advice and review the status of stocks. Article 10 spells out the tasks of the RFMO both as regards the substantive rules it should adopt and the way it should go about adopting them:

States must collect and exchange scientific, technical and statistical data with respect of fisheries and the data must be in sufficient detail to facilitate effective stock assessment: article 14. They are required to cooperate through the RFMO to develop and share analytical techniques and stock assessment methodologies to improve measures for the conservation and management of the fish. Further details on the standard requirements for the collection and sharing of data are set out in an Annex to the Agreement.

The World Tuna Agreement also deals with how these conservation measures are to be implemented in the seas covered. It sets out the detailed duties of the flag State of vessels which fish on the high seas to ensure that they comply with the conservation measures in place and Part VI contains provisions dealing with compliance and enforcement by the flag state. Procedures for cooperation on enforcement at the regional level are also prescribed.

Article 24 of the World Tuna Agreement makes provision to recognise the special requirements of developing states. In giving effect to the duty to cooperate in setting conservation and management measures, the State Parties must take into account in particular:

The RFMO established under the World Tuna Agreement covering the fishing of tuna in the Cook Islands’ waters is the Convention on the Conservation and Management of Highly Migratory Fish Stocks in the Western and Central Pacific Ocean (“the Pacific Tuna Convention”). The Cook Islands participated in the negotiations which lasted six years before the Convention was adopted at the multilateral conference in Honolulu in September 2000. The Convention came into force in June 2004.

The Pacific Tuna Convention is made under UNCLOS and under the World Tuna Agreement. Its objective is, according to article 2, to ensure, through effective management, the long-term conservation and sustainable use of highly migratory fish stocks in the western and central Pacific Ocean.

Part III of the Pacific Tuna Convention provides for the establishment of the Commission for the Conservation and Management of Highly Migratory Fish Stocks in the Western and Central Pacific Ocean (“the WCPF Commission”). The WCPF Commission has international legal personality and its membership is made up of states who have agreed to be bound by the Convention’s terms: see article 9. It takes its decisions, as a general rule, on the basis of consensus: article 20. The WCPF Commission has 32 member countries including all the Pacific Island countries including New Zealand and Australia and all the major fishing nations including the United States, the European Union, China, Japan and Taiwan. It applies in the “Convention Area” which is defined in article 3(1) by a series of geographic coordinates.

The functions of the WCPF Commission are listed in article 10 of the Pacific Tuna Convention. Those functions most relevant to the present appeal are to:

The measures which the WCPF Commission may adopt in performing its functions include measures relating to the quantity of any species which may be caught, the level of fishing effort, the areas and periods in which fishing may occur and the fishing gear that may be used. Article 10(3) lists the criteria which the WCPF Commission must take into account when deciding how to allocate the total allowable catch or total level of fishing effort among the members. These factors include not only the status of stocks in the Convention Area but also “the needs of small island developing States, and territories and possessions, in the Convention Area whose economies, food supplies and livelihoods are overwhelmingly dependent on the exploitation of marine living resources;”.

Subsidiary bodies of the WCPF Commission are established under article 11, namely the Scientific Committee, the functions of which are set out in article 12 and the Technical and Compliance Committee the functions of which are set out in article 14. These Committees provide advice and recommendations to the Commission.

Article 5 of the Pacific Tuna Convention sets out the principles and measures for conservation and management. It provides that the members of the Commission shall, in giving effect to their duty to cooperate in accordance with UNCLOS, the World Tuna Agreement and this Convention abide by the principles that are set out there. The principles set out in article 5 of the Pacific Tuna Convention are almost identical in their wording to article 5 of the World Tuna Agreement, and article 6 of the Convention to a large extent mirrors article 6 of the World Tuna Agreement in elaborating on what is meant by the precautionary approach.

Part IV of the Pacific Tuna Convention sets out the obligations of members of the WCPF Commission. These include the provision of data and keeping it informed of the measures the members have adopted for the conservation and management of highly migratory fish stocks in areas within the Convention Area under their national jurisdiction. The recognition of the special requirements of developing states is carried forward from article 24 of the World Tuna Agreement to article 30 of the Pacific Tuna Convention with additional provisions for funding the involvement of small islands in the work of the WCPF Commission.

The WCPF Commission is therefore the body under the auspices of which all those states who wish to fish for tuna in the Western and Central Pacific Ocean cooperate to put in place the measures needed to ensure that the fishery in that region is sustainable and that each member’s allocation of effort days or catch limits is set in a way which is consistent with the objectives set out in the Pacific Tuna Convention. The WCPF Commission receives and considers work from its Committees and holds annual meetings at which conservation and management measures (“CMMs”) are adopted as binding on all those states, whether members or not, who wish to fish in this region.

The ninth Regular Session of the WCPF Commission was held in Manila in December 2012. The Cook Islands was represented at that meeting by the Secretary of the Ministry of Marine Resources, Benjamin Ponia who acts as head of delegation to the annual governing meetings of the WCPF Commission. Mr Ponia has provided affidavits in these proceedings on behalf of the Attorney General. At that meeting in Manila, the WCPF Commission adopted a Conservation and Management Measure in accordance with article 10 of the Pacific Tuna Convention. This is referred to as CMM 2012-01. It applied to all areas of high seas and all EEZs in the Convention Area subject to some exceptions.

In a series of preambles to CMM 2012-01, the WCPF Commission:

recalled that measures adopted since 1999 to mitigate the overfishing of bigeye and yellowfin tuna and to limit the growth of fishing capacity in the Western and Central Pacific Ocean had been unsuccessful;

recognised that the Scientific Committee had determined that the bigeye tuna stock was subject to overfishing and that yellowfin tuna stocks were being fished at capacity, so that reductions in fishing mortality were required to reduce the risks that these stocks will become overfished.

CMM 2012-01 set objectives for the fishing mortality rates for skipjack, bigeye and yellowfin tuna having regard to the maximum sustainable yield for those stocks. The CMM adopted interim measures for 2013 which included a three month ban (July, August and September) on the setting of FADs by purse seine vessels in EEZs and the high seas in the tropical area between 20˚N and 20˚S.

The CMM 2012-01 also set limits on effort days restricting the effort days for member states. These limits were set on the basis of the advice of the Scientific Committee. Different member states were subject to different limits, with many restricted to the level of purse seine fishing effort in their EEZs which they had been permitted in earlier years. The effect of these provisions of CMM 2012-01 was that an overall limit of 64,000 effort days for purse seine fishing was set for the Convention Area.

According to Mr Ponia, the Cook Islands fell within the category of members covered by para 14 of CMM 2012-01:

The CMM went on to set up a working group to devise a multi-year management programme of work for 2014-2017 to achieve in the longer term the objective of reducing the fishing mortality of bigeye, to reduce the catch of juvenile tuna and to assess the implications of reducing the period of FADs prohibition. The working group was required to consider the special requirements of small island developing states such that the CMMs would not result in a disproportionate burden on those states: para 32.

Mr Ponia says in his evidence that he wrote formally to the Executive Director of the WCPF Commission on 12 November 2013 to say that, in accordance with para 14 of CMM 2012-01, the Cook Islands declared the limits for purse seine fishing for their EEZ which he then set out in the letter. Catch limits of skipjack tuna were limited to an accumulative total of 30,000 metric tonnes in any consecutive four quarterly period and the effort limit for purse seine fishing was limited to 1,250 fishing days per year. He informed the WCPF Commission that those limits had been adopted and legislated for in the Regulations and the Fishery Plan. He asked the Executive Director to inform the other members of the Cook Islands’ declaration. Mr Ponia confirms that the limits were presented to the tenth Regular Session of the WPCF Commission held in December 2013 and that subsequently the Cook Islands was granted an EEZ limit of 1,250 fishing days.

That, then, is how the Decisions fit in to the overall regime governing fishing for tuna in the Western and Central Pacific Ocean. 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 implements the other elements in the CMM which are binding on the Cook Islands as a member of the WCPF Commission. The Fishery Plan refers to CMM 2012-01 at para 12(b), noting the three month ban on setting FADs from July to September and noting that the Cook Islands has elected to extend this ban to October as well as adopting other measures. The EU Agreement represents part of the use that the Cook Islands has chosen to make of the 1,250 days that it has declared under para 14. There is no doubt that under the international treaties, a coastal state can choose either to use its effort days for its own fleet or to generate revenue by licensing vessels of other nations to use those days. The EU Agreement does not result in the Cook Islands exceeding the 1,250 effort days allocated to it.

Viewed in that context, the question as to international and domestic law for the lower courts and now for the Board could helpfully be framed by asking this: when the Cook Islands establishes its effort 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. The Board will consider each in turn. They are:

article 206 of UNCLOS;

article 5 of the World Tuna Agreement and article 5 of the Pacific Tuna Convention;

customary international law; and

domestic legislation including the MRA 2005 and the Environment Act 2003.

As described above, UNCLOS contains detailed provisions about how fishing rights in the coastal waters of states and on the high seas are to be managed through international and regional arrangements such as the World Tuna Agreement and the Pacific Tuna Convention. Those provisions are set out in Part V of UNCLOS.

Article 206 is 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 Part 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”: article 194. Section 2 requires states to cooperate 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 Part V concerning fish. There are parallel provisions about programmes of scientific research and about exchange of data and information about pollution (articles 200 and 201).

Article 206 forms part of section 4 of Part XII headed “Monitoring and Environmental Assessment”. The three articles that make up that section provide as follows:

Section 5 of Part XII then requires states to adopt laws to prevent, reduce and control pollution from various sources including land-based sources (article 207); seabed activity (article 208), dumping (article 210), or from vessels (article 211).

The Court of Appeal noted at para 38 that it had been common ground before Potter J both that article 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 article 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 Part V. One must read the phrase “significant and harmful changes to the marine environment” in article 206 as covering the kind of damage, in addition to pollution, that is the subject matter of Part XII. That same phrase is used, for example, in article 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 as to how many effort days they claim pursuant to conservation and management measures adopted by a RFMO established pursuant to articles 63(2) and 64 of UNCLOS, Part III of the World Tuna Agreement and Part 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 or before declaring a limit of 1,250 fishing days pursuant to para 14 of CMM 2012-01 or before licensing EU vessels to make use of some of those effort days.

The Board has described in some detail the structure of the World Tuna Agreement and the Pacific Tuna Convention and their roles as the mechanisms for international and regional cooperation on the management of fish stocks envisaged by articles 63 and 64 of UNCLOS. The relevant articles in the World Tuna Agreement and the Pacific Tuna Convention are in very similar terms so it is necessary only to set out article 5 of the Pacific Tuna Convention:

The Court of Appeal held at para 48 that the World Tuna Agreement and the Pacific Tuna Convention imposed obligations on the Cook Islands Government before entering into the Decisions to carry out an assessment of the potential effects of the extension of the purse seine fisheries on the marine environment particularly in stocks of bigeye and yellowfin tuna, to ensure that its measures were designed to maintain the stocks of skipjack tuna at levels capable of producing a maximum sustainable yield and to apply the precautionary approach. These obligations mean that it was necessary to determine the environmental impact of the proposed activities on the marine environment: para 64. This view was supported, the Court of Appeal held, by article 8.2 of the Pacific Tuna Convention which provides:

The Board disagrees with this conclusion because it does not take into account the nature of the Decisions and their place in the international and regional framework of which they form a part. The Attorney General is right to place emphasis on the wording of the chapeau of article 5. This introduces the principles set out as those which the members of the Commission shall apply “in giving effect to their duty to cooperate in accordance with” UNCLOS, the World Tuna Agreement and the Pacific Tuna Convention. That is the primary relevance of the principles and measures envisaged by article 5.

Article 5 cannot have been intended or expected by the parties to the Pacific Tuna Convention and the members of the WCPF Commission to require the members of the Commission to start from scratch in identifying how many fish there are, where they are, whether or not certain species are being overfished, what fishing mortality rate should be maintained for different species, what fishing methods should be used or banned during certain times of the year and so forth. That work has been done by the WCPF Commission. The Commission arrives at the conservation and management measures adopted at its annual meetings having regard to the data and other information provided to it by the members from across the whole Convention Area. Similarly, the Scientific Committee and its Technical and Compliance Committee is able from those data to assess the efficacy (or lack of it) of measures adopted in the past in managing the fish stocks in the Convention Area. The CMMs also take into account, one assumes, all the points made and debated by the heads of delegation instructed by their national governments, during the bargaining process in the days of negotiation at the conference.

The requirement in para 14 of CMM 2012-01 that the effort limit declared needs to be “consistent with the objectives for those species” must therefore be read not as requiring the members to identify and set their own objectives but as a reference to the objectives set in the CMM itself. Those objectives include the control of FADs stipulated by the measure and the fishing mortality rates set for skipjack, bigeye and yellowfin tuna in para 1.

There are other factors too that affect what is expected of the Cook Islands when adopting an effort day limit pursuant to CMM 2012-01. The Board has already referred to those provisions of the international instruments that demonstrate that the states sought to respect and protect small island developing nations to ensure that their interests were not overridden by the more powerful fishing nations. This is not simply a matter of protecting the food supply for artisanal and subsistence fishers on the Pacific Islands but of providing a source of revenue from the licensing of fishing rights by those smaller nations to the vessels from the larger commercial fishing nations.

Was the effort limit of 1,250 days declared by Mr Ponia to the Executive Committee of the WCPF Commission in his 12 November 2013 letter consistent with the objectives for those tuna species as required by para 14 of CMM 2012-01? It appears that it was. None of the other members seems to have objected and, as Mr Ponia records in his affidavit, at the 2010 annual meeting, that effort limit was confirmed.

The fact that the effort day limit was consistent with the Cook Islands’ international obligations was also confirmed by the evidence before the courts below from Dr John Hampton. He is the Chief Scientist and Deputy Director of the Fisheries Aquaculture and Marine Ecosystems Division of the Pacific Community. He leads and directs the work of the Oceanic Fisheries Programme which is the main provider of scientific services for oceanic fisheries in the Pacific Islands region. He recognises that although tuna are highly migratory, they demonstrate “considerable regional fidelity on scales of hundreds of nautical miles”. This means, he says, that coastal states can implement effective domestic measures to promote conservation and sustainable use of tuna stocks within their EEZs in a way which is complementary to regional based and international fish stock management.

Nonetheless, he makes the point that because tuna are highly migratory and do swim over hundreds of nautical miles, there is little to be gained in the Cook Islands further reducing the effort days in its EEZ. The fish will swim into the adjacent high seas area and be caught by licensed vessels there.

Dr Hampton describes the Fishery Plan as:

Mr Framhein’s case was not a general challenge to the appropriateness of the 1,250 day effort limit or the general adequacy of the Lehodey Report or other material on which the Fishery Plan was based. Still less can it be treated as a challenge to the appropriateness of CMM 2012-01. Mr Framhein’s case was that there was an obligation on the Cook Islands Government to carry out an EIA before adopting the 1,250 day effort limit. The Board concludes that the Court of Appeal was wrong to decide that the World Tuna Agreement or the Pacific Tuna Convention imposed an EIA obligation on the Cook Islands.

Mr Framhein argued that customary international law also imposed an EIA obligation on the Cook Islands Government. Mr Framhein provided an affidavit from Dr Katherine Miles who is a Fellow of, Director of Studies in Law and Lecturer in International Law at, Gonville and Caius College, Cambridge and a University Lecturer in International Law. Having found other sources for the EIA obligation, the Court of Appeal concluded at para 70 that it was not necessary to consider whether customary international law placed the same EIA obligation on the Government.

Dr Miles’ evidence describes the way that customary international law emerges over time from the practice of states. She then turns to the decisions of the International Court of Justice (“ICJ”) on which this part of Mr Framhein’s case depends: Pulp Mills on the River Uruguay (Argentina v Uruguay) Judgment of 20 April 2010 [2010] ICJ Rep 14 (“Pulp Mills”) and Certain Activities Carried Out by Nicaragua in the Border Area (Costa Rica v Nicaragua) [2015] ICJ Rep 665 judgment of 16 December 2015 (“Costa Rica v Nicaragua”). She derives from these cases the principle that “Cook Islands is under a customary international law obligation to conduct an EIA in relation to proposed activities of transboundary environmental significance or of significant impact on a shared resource.” She then expresses her view that the fishing activities contemplated by the Fishery Plan and the EU Agreement fall within that category. This view is based on the fact that: (para 15)

After discussing what the content of the EIA should be, Dr Miles turns to the relevance of conventions or international agreements relating to the management of shared fisheries resources. She states:

She lists the international agreements to which the Cook Islands is a party, including the World Tuna Agreement and the Pacific Tuna Convention. Her opinion on this point is that there is nothing in the Decisions or any other relevant international agreement which contradicts the need for an EIA.

We consider first the two ICJ judgments. In Pulp Mills, Argentina brought proceedings alleging that Uruguay was in breach of its international obligations by unilaterally authorising the construction of pulp mills on the left bank of the River Uruguay. It was alleged that this was in breach of the Statute of the River Uruguay concluded between them in 1975. The River marked the boundary between the two countries. Argentina objected to the pollution likely to be caused to the River by the mills, as well as to air pollution, noise and the visual and general nuisance which would have an effect on the tourism sector. The 1975 Statute contained an obligation in article 7 for one party to notify the other of a plan that might cause significant damage to the other party. The ICJ held at para 113 that the obligation to notify was “intended to create the conditions for successful co-operation between the parties, enabling them to assess the plan’s impact on the river on the basis of the fullest possible information and, if necessary, to negotiate the adjustments needed to avoid the potential damage that it might cause”. The ICJ also recorded that the parties agreed on the need for a full EIA in order to assess any significant damage that might be caused by a plan: para 116. The ICJ held that the information provided by Uruguay did not comply with its obligations under the 1975 Statute in this regard: para 122. The ICJ also held that Uruguay had failed to comply with its procedural obligations under article 41(a) of the 1975 Statute. By article 41(a) the parties to the 1975 Statute undertook to protect and preserve the aquatic environment and, in particular, to prevent its pollution.

When the ICJ came to consider whether there was any substantive failure on the part of Uruguay, it reiterated that both parties accepted that an EIA obligation arose under the terms of the 1975 Statute: para 203. The parties disagreed about the content of any such EIA. The ICJ then considered the relationship between the need for an EIA, where the planned activity is liable to cause harm to a shared resource and transboundary harm, and the obligations of the parties under the 1975 Statute:

Having noted that neither the 1975 Statute nor customary international law specified the scope or content of an EIA, the Court went on:

That passage in Pulp Mills was confirmed by the ICJ in Costa Rica v Nicaragua. Costa Rica accused Nicaragua of dredging the San Juan River in violation of its international obligations because it failed to carry out an appropriate transboundary EIA of its dredging works. The ICJ recorded at para 101 that the parties broadly agreed on the existence in general international law of an obligation to conduct an EIA concerning activities carried out within a state’s jurisdiction that risk causing significant harm to other states, particularly in areas or regions of shared environmental conditions. The ICJ cited para 204 of Pulp Mills and also an earlier passage in the Pulp Mills judgment where the ICJ had emphasised the obligation on a State to avoid activities in any area under its jurisdiction causing significant damage to the environment of another State. That was regarded as an aspect of the basic customary rule that it is every state’s obligation not knowingly to allow its territory to be used for acts contrary to the rights of other states.

The ICJ in Costa Rica v Nicaragua held that the EIA obligation was not limited to industrial activity of the kind in issue in Pulp Mills: “the underlying principle applies generally to proposed activities which may have a significant adverse impact in a transboundary context”. The ICJ went on:

The Board accepts for present purposes Dr Miles’ analysis as to how customary international law arises. The Board also assumes for this purpose that she is right to say that the Pulp Mills case establishes that there is a customary international law principle as set out in para 204 of that case and confirmed in Costa Rica v Nicaragua.

However, the Board does not accept that Dr Miles is right to say the fishing activity covered by the Decisions amounts to activity having the potential to create significant transboundary environmental harm or that it falls within the scope of the rule established by those ICJ judgments.

First, this is not a transboundary case of the kind considered in Pulp Mills and Costa Rica v Nicaragua because the Cook Islands’ EEZ bounds on the high seas not on the territory of another state. The fish which the Cook Islands catch pursuant to the Fishery Plan do not belong to another state; each state is entitled to declare its own catch days and license the catching of fish within the limits laid down for it by the WCPF Commission. It is true of course that each tuna caught by a vessel licensed by a member of the WCPF Commission using their own effort days or catch limits cannot then be caught by vessels using a different member’s effort days. In that sense, every member’s exercise of its rights depletes the number of fish that are available to be caught by every other member. But that does not mean that that each member’s fishing effort “adversely affects the environment” or that it “risks significant transboundary harm” of the kind envisaged in the two ICJ judgments.

Even if Dr Miles is right to say that the customary international law obligation is not superseded by the international treaties governing fishing for tuna in the EEZ, those treaties and the CMM 2012-01 are relevant to an assessment of whether there is a risk of “significant adverse impact” of fishing stocks. The stated purpose of the international regime which culminated in CMM 2012-01 and the member states’ setting of their effort or catch limits is precisely to prevent or mitigate that adverse impact. Each member is entitled to act on the basis that the CMM 2012-01 has been properly devised to achieve its objective; the courts of the member states cannot assume that the CMM is inadequate or will fail. The Cook Islands Fishery Plan was regarded by the international community as being consistent with those objectives.

The Board therefore rejects the submission that there is any relevant customary international law obligation which requires the Cook Islands to carry out an EIA before adopting the Decisions.

The MRA 2005 states that its principal objective is to provide for the sustainable use of the living and non-living marine resources for the benefit of the people of the Cook Islands: section 3(1).

Section 3(3) provides:

If Mr Framhein had established that the Ministry had acted in breach of those international or regional obligations, that would raise an interesting question whether the effect of section 3(3) made such a breach justiciable by way of judicial review in the Cook Island courts. But as the Board has decided that there is no such breach, that question does not arise.

The next issue is therefore whether the MRA 2005 itself imposes an EIA obligation, regardless of whether or not there is any such obligation on the international plane. Section 4 provides:

Those general principles apply to all the Ministry’s and Secretary’s functions under the MRA 2005, not only those relating to fishing. There is no express requirement to carry out an EIA before performing any particular function or exercising any particular power under the Act and the Board considers that there is no justification for implying that there is any such obligation for all purposes.

What the Ministry needs to do depends on the particular circumstances in which the function is being performed. The present context, as the Board has explained, is one where the CMM being implemented by the Cook Islands was based on extensive scientific evidence drawn from all the members of the WCPF Commission and had been adopted having regard to, amongst many other factors, the impact of fishing on non-target species.

The Board holds therefore that there is no express or implied EIA obligation imposed by section 4 of the MRA 2005 as regards the adoption of the Decisions.

Finally, the Court of Appeal held that an EIA obligation was imposed on the Crown by section 36 of the Environment Act 2003. That lays down a procedure for the grant of project permits by the permitting authority, as defined by the Act, to people who propose undertaking any activity which is likely to cause significant environmental impacts. An application for a project permit must be submitted to the permitting authority and must include an EIA along with the application fee prescribed by regulations. There is then a public consultation exercise during which the permitting authority requests comments from any government department having expertise relevant to the proposed project. If the permit application is rejected by the authority, the applicant may request a review of that decision by the Minister for the Environment. A person who undertakes an environmentally damaging project without a permit commits an offence and is subject to a fine.

That section has no application here. It is true, as the Court of Appeal pointed out, that the interpretation section of the Environment Act defines “person” as including the Crown, or any government department. But looking at section 36 as a whole, it cannot have been intended that the exercise by the Minister of his statutory powers to adopt a fishery plan or to make regulations would be regarded as a “project” for which he has to apply to a different government agency for permit, being subject to a criminal penalty if he fails to do so. It is even less likely that the decision to enter into an international treaty such as the EU Agreement is such a project. The Court of Appeal was wrong to hold that section 36 was relevant to the question whether the Minister was under an EIA obligation before adopting any of the Decisions.

In the light of the above, the Board considers that the Attorney General’s appeal on this ground should succeed and that there was no obligation on the Cook Islands Government either under international or domestic law to carry out an EIA before adopting the Decisions.

The Board also considers that the Attorney General’s appeal should be allowed as regards the Court of Appeal’s decision that the Decisions were unlawful because the Crown failed to adopt a precautionary approach in setting the effort days and FADs limits in the Fishery Plan or the Regulations or in allocating days to the EU purse seine fishing vessels under the EU Agreement.

Article 6 of both the World Tuna Agreement and the Pacific Tuna Convention describes the precautionary approach and more details are set out in Annex II to the World Tuna Agreement. The term “precautionary approach” is a term of art; it does not simply mean being conservative or cautious in one’s approach to setting limits. This is explained in article 6 of the Pacific Tuna Convention, the relevant parts of which provide:

The UN has also adopted Technical Guidelines for adopting a precautionary approach to capture fisheries and species introduction. These stress that “Management according to the precautionary approach exercises prudent foresight to avoid unacceptable or undesirable situations, taking into account that changes in fisheries systems are only slowly reversible, difficult to control, not well understood, and subject to change in the environment and human values.”

An important element of the precautionary approach is the setting of precautionary reference points. Annex II of the World Tuna Agreement explains the two kinds of stock-specific reference points that must be adopted when applying the precautionary approach. These are “limit” points which constrain harvesting within safe biological limits within which the stocks can produce the maximum sustainable yield and “target” reference points which are intended to meet management objectives. The Annex stipulates at para 7:

A limit reference point, for example, is set by identifying the minimum proportion, expressed as a percentage, that the observed species biomass should bear to the unfished biomass. Thus, if the WCPF Commission sets a limit reference point of 20% for yellowfin tuna, that means that if the observed biomass of yellowfin falls below the predefined threshold of 20% of the unfished level, yellowfin is regarded as being overfished and CMMs will need to be adopted to reverse that and to restore the biomass over time. What the unfished level is, what the threshold should be and whether the limit reference point has been exceeded must be assessed on the basis of information such as the observed biomass on the one hand and the catch data on the other, drawn from all the vessels licensed to fish in the Convention Area.

Dr Hampton explains in his first affidavit how these precautionary reference points are calculated. The Scientific Committee of the WCPF Commission regularly receives assessments of the stocks of tropical tuna. The information is gathered by FAME, The Fisheries, Aquaculture and Marine Ecosystems Division of the SPC (SPC being the Pacific Community, formerly the South Pacific Commission). The Commission also receives catch data from the members in accordance with their obligations under the Pacific Tuna Convention. These assessments undergo considerable scrutiny and are from time to time subject to intensive peer review. They are generally considered to be consistent with global best practice. As Dr Hampton says, most of the measures are now being incorporated into the WCPF Commission’s CMMs, establishing science-based references points and levels of risk. For example, the 2014 assessment of yellowfin tuna showed that catch levels were close to the maximum sustainable yield and assessment of bigeye tuna in 2014 showed that the stock was overfished. Management action has therefore been taken in more recent CMMs adopted by the WCPF Commission to rebuild stocks and reduce mortality. These include much more stringent control of FADs as from 2015 as well as effort and catch limits. The short point for the purposes of Mr Framhein’s appeal is that the application of the precautionary approach involves the gathering and analysis of data from all the members about fish stocks and catch levels and the setting of targets across the whole Convention Area not just the Cook Islands’ EEZ.

Witnesses on behalf of Mr Framhein have questioned some of the data on which the WCPF Commission based the conclusions set out in CMM 2012-01 and later CMMs. Dr Daniel Pauly is a marine biologist currently working as the principal investigator of the Sea Around Us Project devoted to studying, documenting and promoting policies to mitigate the impact of fisheries on the world’s marine ecosystems. His evidence is that the stock assessment data published is likely to understate significantly the total catch for the reasons he explains. He also considers that the catch data from the existing purse seine fishery in Cook Islands’ waters may be inaccurate. This means, he says, that recent catches of yellowfin exceed maximum sustainable yield so that there must be overfishing and that effort limits should be set accordingly. Because of these uncertainties, the adoption of the precautionary approach in accordance with article 5 of the Pacific Convention or section 4 of the MRA 2005 requires lower effort day limits than adopted in the Fishery Plan and the Regulations. Kelvin Passfield who is Vice Chair of the International Union for Conservation of Nature Commission for Ecosystem Management states in his evidence that the precautionary approach required the complete banning of FADs in the Fishery Plan.

The Board does not consider that these proceedings can be a forum for examining the accuracy of the catch data which the Cook Islands feeds into the WCPF Commission analysis. It is not possible for the Cook Islands or the courts below to investigate the totality of the data gathered and used by the WCPF Commission and its Committees. The Cook Islands, and the courts, must approach this issue on the basis that the members of the WCPF Commission agreed to the adoption of CMM 2012-01 after properly applying the precautionary approach as mandated by the World Tuna Agreement and the Pacific Tuna Convention. The Commission members have accepted that the declaration of 1,250 effort days by the Cook Islands complied with that CMM and that the Fishery Plan implements the FADs ban required by the CMM and indeed goes further by banning FADs in October.

Mr Framhein’s case rests in part on an assertion that there were particular features of the Cook Islands’ EEZ and stock requirements that obliged the Ministry to impose constraints on effort days or on FADs beyond those which would be consistent with CMM 2012-01. These include the presence of a spawning biomass of bigeye tuna in the Northern part the Cook Islands’ EEZ referred to in the Lehodey Report and the needs of artisanal and subsistence fishers. The Board concludes, however, that the obligation under section 4(a)(ii) of the MRA 2005 to take account of the need to apply the precautionary approach did not preclude other factors being considered by the Ministry before adopting the Decisions. Mr Ponia’s evidence is that restrictions on the use of FADs result in a significant loss of revenue from licences granted to other nations’ fishing vessels to fish in the Cook Islands’ EEZ. The Ministry is entitled to balance its obligations under section 4 with the need to generate income for the wider benefit of the Cook Islands population.

There is also a difference of view as to whether, given the highly migratory nature of tuna, a self-denying ordinance on the part of the Cook Islands in fact has any effect on overall fish mortality in the Convention Area. Dr Hampton’s view is that any further limit on purse seine tuna catches in the Cook Islands’ EEZ would simply result in a transfer of activity that would occur in the adjacent high seas. Dr Pauly’s opinion is that this is not a relevant factor to take into account because in applying the precautionary approach “it is not appropriate for a decision-maker to allow fishing activities on the basis that damaging or negative fishing activities are already taking place elsewhere”. The Board does not accept the logic of Dr Pauly’s view. It is legitimate for the Ministry to consider what, if any, beneficial effect a further reduction in fishing in the EEZ would have on fish stocks when deciding whether to sacrifice the revenue that could be earned.

Both Potter J and the Court of Appeal addressed the fact that the effort limit of 1,250 days was more than the effort limit recommended in the Lehodey Report of 1,000 days. It is not entirely clear that Dr Lehodey was recommending any particular level of effort days. He says at para 6.2 of his Report that the effect of increasing fishing effort in the EEZ was tested using a model which set fishing effort of 1,000 fishing days divided between FAD and free school fisheries. Even if one reads the Report as recommending that, the Board does not accept that the precautionary approach means that that effectively set the upper limit on the number of effort days that could lawfully be included in the Fishery Plan and the Regulations.

As to the spawning bigeye tuna, Dr Lehodey does not recommend a ban on FADs because of the biomass in the northern EEZ. He says in his conclusions:

The Ministry clearly did consider the issue of FAD fishing and applied a ban on FADs for longer than required by CMM 2012-01 in the Fishery Plan and Regulations. In the Board’s judgment there is no basis for holding that the Ministry acted in breach of either section 3(3) or section 4(a)(ii) of the MRA 2005 by failing to apply the precautionary approach when adopting the Fishery Plan or the Regulations. Since the EU Agreement is simply the allocation of some of the Cook Islands’ 1,250 days and the EU vessels will be subject to the FAD restrictions imposed, it follows that there was no breach of the precautionary approach in entering into the EU Agreement either.

For the above reasons, the Board considers that the Attorney General’s appeal should succeed on both grounds.