On Friday last week, Justice Dame Judith Potter allowed the appeal against the decisions she made regarding the case last year, to go ahead.
She also declined the state’s application to seek costs for the High Court case, and security of costs for any further action.
The government representing the Attorney General, Minister of Marines Resources and secretary of Marine Resources, did not oppose the application for appeal in substance, but sought security for costs of $15,000 as well as High Court costs of $15,000.
The application for leave to appeal was filed in December last year by the traditional chiefs, the Aronga Mana of Te Au O represented by broadcaster William Framhein, and the environmental group, Te Ipukarea Society, after Justice Potter dismissed the initial case which was filed in November, 2016.
The case alleged the government failed to conduct an environmental impact assessment and did not consult with traditional leaders before going ahead with the EU fishing deal.
“I am satisfied that this is an appropriate case in which leave to appeal should be granted,” said Justice Potter in her ruling on leave to appeal.
“The issues in the proceeding are of general and public importance and affect major interests of and for Cook Islanders.
“It is in the interests of justice that the important issues in this case be submitted to the Court of Appeal.”
While declining the state’s application seeking security for costs and High Court costs, Justice Potter said that there was a significant and genuine public interest component in this proceeding.
The case, which was heard in the High Court from July 3-6 last year, 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. The MRA does not exclude that custom.
For each of these three failures, the applicants have initially asked the court to declare the Regulations, Fishery Plan and the EU Partnership Agreement to be null and void.