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

An environmental impact assessment duty does not arise merely because a fisheries decision may affect fish stocks. UNCLOS article 206 concerns pollution or comparable damage under Part XII, not depletion managed through regional fisheries arrangements. Treaty principles must be read within that cooperative framework. The customary international-law EIA rule applies to significant transboundary environmental harm and did not cover an EEZ bounded by the high seas. The precautionary approach is a technical, regional framework based on scientific data and reference points, not a requirement to adopt the most conservative limit. Under article 66A, customary law must be established pragmatically, but enacted marine-resources legislation superseded customary tiaki powers over the EEZ. Consultation remained discretionary.

William Framhein challenged the Fishery Plan, the Marine Resources (Purse Seine Fishery) Regulations 2013 and the EU Agreement concerning tuna fishing in the Cook Islands’ EEZ. He relied on customary law, international and domestic EIA duties, the precautionary approach and consultation obligations under the Cook Islands Marine Resources Act 2005.

The High Court rejected the EIA, precautionary-approach and customary-consultation claims, although it found that a biennial review had not been conducted. The Court of Appeal found breaches of EIA and precautionary duties, granted declarations and ordered a further EIA, but rejected the customary-law and key-stakeholder grounds. The Board considered whether those EIA and precautionary duties existed and whether the Aronga Mana had to be consulted.

1. Disposition. The Attorney General’s cross-appeal was allowed. Mr Framhein’s appeal was dismissed. The refusal to set aside the Decisions was not challenged. The Court of Appeal’s findings concerning an EIA and the precautionary approach could not stand.
2. EIA duties. UNCLOS article 206 formed part of Part XII, which addressed pollution and comparable damage to the marine environment. It did not apply to the declaration of fishing effort or licensing under conservation measures adopted through the regional fisheries regime. Articles 5 of the World Tuna Agreement and the Pacific Tuna Convention had to be understood as principles applied in fulfilling the duty to cooperate. A member implementing a regional conservation measure was not required to start afresh by independently reassessing stock abundance or fishing mortality. The reference in CMM 2012-01, paragraph 14, to limits being consistent with the objectives for the species referred to the objectives set by the measure itself.
3. The customary international-law principle recognised in Pulp Mills on the River Uruguay (Argentina v Uruguay) [2010] ICJ Rep 14 and Certain Activities Carried Out by Nicaragua in the Border Area (Costa Rica v Nicaragua) [2015] ICJ Rep 665 concerned activities capable of causing significant adverse transboundary harm, particularly to a shared resource. The Cook Islands’ EEZ bordered the high seas, not another state’s territory, and the regional regime was designed to prevent or mitigate adverse effects. No customary EIA duty therefore arose.
4. Section 4 of the Cook Islands Marine Resources Act 2005 contained general principles but no express or implied EIA obligation. Section 36 of the Environment Act 2003, governing project permits, did not apply to the exercise of statutory powers to adopt a fishery plan or regulations, or to entering an international agreement.
5. Precautionary approach. The precautionary approach was a term of art. It required the regional collection and analysis of scientific data, stock-specific reference points, account to be taken of uncertainty and non-target species, and action when reference points were approached or exceeded. The proceedings were not a forum for re-examining the totality of the data used by the WCPF Commission. The Ministry could also consider revenue and whether reducing local effort would reduce overall regional mortality. The Fishery Plan and Regulations therefore did not breach the precautionary approach.
6. Custom and consultation. Article 66A required courts to ascertain customary law from evidence. Its application was not conditional on executive awareness, and exhaustive evidence from every Aronga Mana was unnecessary. The evidence established a customary tiaki role over the moana and kai moana, including being informed of proposals for exercising that role, but not a general right to consultation on fishing plans. Under article 66A(3), that customary jurisdiction was inconsistent with the statutory functions given to the Ministry over the fishery waters, including the EEZ, and was superseded. Section 4(d) of the Cook Islands Marine Resources Act 2005 required broad participation to be taken into account but imposed no specific consultation duty. The undefined expression “key stakeholders” in paragraph 12 of the Fishery Plan left the Secretary a discretion.

1. Privy Council: On 28 February 2022, the Board allowed the Attorney General’s cross-appeal and dismissed Framhein’s appeal.
2. Court of Appeal of the Cook Islands: On 26 September 2018, the Court found breaches of EIA and precautionary duties, granted declarations and ordered a further EIA, while rejecting the customary-consultation and key-stakeholder grounds.
3. High Court of the Cook Islands: Potter J rejected the principal EIA, precautionary-approach and customary-consultation claims, but found that the required biennial review had not been conducted and dismissed the claims without relief.