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Case details

Framhein (Respondent) v Attorney-General of the Cook Islands (sued on behalf of the Crown) (Appellant) (Cook Islands)

Case ID: JCPC 2019/0121

Jurisdiction: Court of Appeal of the Cook Islands

Case summary

Issue

When deciding to permit certain fishing activities, did the Government of the Cook Islands fail to (1) carry out the required Environmental Impact Assessment, (2) be sufficiently cautious, on account of scientific uncertainty, and/or (3) consult key stakeholders, including traditional leaders of the Cook Islands (the Aronga Mana)?

Facts

By three related measures – the Marine Resources (Purse Seine Fishery) Regulations 2013 ("the Regulations"), the Skipjack Tuna Purse Seine Fishery Plan ("the Fishery Plan"), and the EU-Cook Islands Sustainable Partnership Agreement and Implementation Protocol ("the Partnership Agreement") – the Government of the Cook Islands permitted, on an extended basis, commercial tuna fishing using the purse seine method in Cook Islands waters.

On a claim for judicial review, Mr Framhein and Te Ipukarea Society 1996 Incorporated ("TES") alleged that, in adopting the Regulations, the Fishery Plan, and the Partnership Agreement, the Government of the Cook Islands failed (i) to carry out an Environmental Impact Assessment ("EIA"), as required under national and international law, (ii) to apply the precautionary approach, or to have proper regard to the impact of the measures, as required under national and international law, (iii) to consult the Aronga Mana (the traditional leaders of the Cook Islands), in accordance with customs protected by the Constitution, and (iv) to consult key stakeholders, including the Aronga Mana and TES, in accordance with with the Fishery Plan. In the High Court of the Cook Islands, each of these grounds of challenge was dismissed.

Mr Framhein and the Society appealed to the Court of Appeal of the Cook Islands. The Court of Appeal allowed the appeal in part, deciding that the Government unlawfully failed to carry out an EIA and to apply the precautionary approach. The Court of Appeal upheld the High Court’s decision that the Government was not required to consult the Aronga Mana and TES.

Mr Framhein now appeals to the Judicial Committee of the Privy Council in respect of the Court of Appeal’s conclusions on the consultation issues. The Attorney General cross-appeals against the Court of Appeal’s conclusions on the EIA and precautionary approach.

Parties

Appellant(s)

Attorney-General of the Cook Islands (sued on behalf of the Crown)

Respondent(s)

William Framhein

Appeal

Justices

Lord Hodge, Lord Briggs, Lord Leggatt, Lord Burrows, Lady Rose

Hearing start date

17 November 2021

Hearing finish date

17 November 2021