21 January 2003
Clerk of the Committee
Local Government and Environment Committee
Select Committee Secretariat
Fax Number: (04) 499 0486
MARINE RESERVES BILL
1. This submission is made on behalf of the Auckland Conservation Board ["the Board"].
2. The Auckland Conservation Board is appointed by the Minister of Conservation pursuant to Part IIA section 6L of the Conservation Act 1987. The Board has three Maori members appointed in consultation with the Minister of Maori Affairs.
3. The primary functions of the Board are identified in section 6M of that Act as follows:
6M. Functions of Boards -
(1) The functions of each Board shall be –
(a) To recommend the approval by the Conservation Authority of conservation management strategies, and the review and amendment of such strategies, under the relevant enactments:
(b) To approve conservation management plans, and the review and amendment of such plans, under the relevant enactments: [emphasis added]
(c) To advise the Conservation Authority and the Director-General on the implementation of conservation management strategies and conservation management plans for areas within the jurisdiction of the Board: [emphasis added]
(d) To advise the Conservation Authority or the Director-General –
i. On any proposed change of status or classification of any area of national or international importance: and
ii. On any other conservation matter relating to any area within the jurisdiction of the Board: [emphasis added]
(e) To advise the Conservation Authority and the Director-General on proposals for new walkways in any area within the jurisdiction of the Board:
(f) To liaise with any Fish and Game Council on matters within the jurisdiction of the Board:
(g) To exercise such powers and functions as may be delegated to it by the Minister under this Act or any other Act.
4. The powers of the Board are defined under the Conservation Act as:
6N. Powers of Boards –
(1) Every Board shall have all such powers as are reasonably necessary to expedient to enable it to carry out its functions.
(2) Without limiting the generality of subsection (1) of this section, each Board may
(a) Advocate its interests at any public forum or in any statutory planning process; and
(b) Appoint committees of members and other suitable persons, and delegate to them functions and powers.
(3) The power conferred by subsection (2)(a) of this section shall include the right to appear before Courts and tribunals in New Zealand and be heard on matters affecting or relating to the Board's functions.
5. The Board's interests are accordingly founded on the Conservation Act 1987, which is an Act to promote the conservation of New Zealand's natural and physical resources. By virtue of its conservation management overview and advocacy roles, the Board has a particular interest in the proposed legislation.
6. The Board's submissions on the Marine Reserves Bill ["the Bill"] relate to public interest matters in respect of its conservation interests. Conservation is defined in Section 2 of the Conservation Act as:
"The preservation and protection of natural and historic resources for the purpose of maintaining their intrinsic values, providing for their appreciation and recreational enjoyment by the public and safeguarding the options of future generations".
7. The Board has four marine reserves within its area of jurisdiction: -
- Kermadec Islands
- Cape Rodney - Okakari Point
- Long Bay - Okura
- Motu Manawa [Pollen Island]
8. A statutory Conservation Management Plan for the Cape Rodney - Okakari Point Marine Reserve has been approved by the Board [entitled: Leigh Reserves Complex Conservation Management Plan] and is operative.
9. In addition a proposed marine reserve adjacent to Waiheke Island [Te Matuku Bay] has been accepted by the Minister and is currently with concurrent ministers. A further two marine reserve applications [around East Coast Great Barrier Island and Tiritiri Matangi Island respectively] are pending.
10. The Board is one of the few Boards with extensive experience with marine reserves - the Cape Rodney - Okakari Point Marine Reserve [also known colloquially as the Goat Island or Leigh Marine Reserve] having been established in 1975, the first such reserve.
11. Introduction: The Board is strongly supportive of this Bill, designed to help implement the New Zealand Biodiversity Strategy and to provide for the preservation and protection of marine biodiversity. The focus of the Bill is to protect marine communities and ecosystems. The vision as proposed is too narrow. It should also include places of special intrinsic value such as geological features, archaeological features, places of spiritual significance, areas of special aesthetic or amenity value, areas used by migrating birds, bird colonies and their associated feeding areas, seal and whale migration routes.
12. The Bill adopts the Section 4 Conservation Act expression of the Treaty obligation. While this is the most onerous of the various statutory Treaty expressions, the Board considers that appropriate and supports its inclusion.
13. As a general observation, marine reserves tend to be controversial. For that reason it is important that tangata whenua, local communities and interested parties are involved in the development and management of reserves. The Board supports the general provisions to that effect contained within the Bill.
14. The Board also supports the extension of Marine Reserve jurisdiction from mean high water springs to the 200-mile outer limit of the Exclusive Economic Zone - including seamounts and sea hills, which are well offshore. It is particularly important that marine biodiversity is protected throughout its range and not just in the immediate vicinity of human populations.
15. The Board is disappointed that the Bill effectively only addresses one element of the suite of marine protection mechanisms which may also include:
- Marine National Parks [no take areas];
- Marine Sanctuaries [no-go areas];
- Marine Parks [with some recreational fishing but no commercial fishing];
- Marine protected areas [areas with special features to be protected];
- Mataitai and Taipure [managed principally by local iwi].
In the Board's opinion this Bill represents a missed opportunity to address marine reserves in as comprehensive a manner as we have addressed land reserves. The Board has no doubt that there is a need for many types of Marine Reserves throughout New Zealand in order to maintain community support and enthusiasm for such mechanisms, and provide appropriate solutions to marine biodiversity problems/issues.
16. For example, the Board considers that there is an urgent need to protect areas with special characteristics and values, especially close to cities such as Takapuna reef, Howick reef, Mangemangeroa estuary and valley. This is especially true as intense pressure from aquaculture, coastal developments and increasing urbanisation of the coastline brings conflicting interests to the surface. Marine reserves as constituted under the existing and proposed legislation, and the coastal provisions of the RMA, are not appropriate for this task.
17. Similarly, the Board notes that the Bill does not give protection to single species. Few marine species are protected in the way we protect, for example invertebrates, lizards, plants and other rare or endangered species on land. Some areas are over-fished and would benefit from protection from further over-exploitation.
18. The Board has concerns about the current processes for marine reserve in particular potential for delays. It therefore strongly supports proposals in the Bill for time limits on the consultation between the Minister of Conservation and other Ministers.
19. The Bill allows for mining, exploration, and prospecting in Marine Reserves under the Minerals Act 1991. However, the 1996 Crown Minerals Act prohibits mineral activity in marine reserves but this seems not to be recognised in the Bill. The Board considers these mining activities inappropriate in a 21st century marine reserve context and recommends appropriate amendments accordingly, subject to the satisfactory termination of any existing licences or permits.
Clause Specific Submissions
20. Clause 3 definition of "foreshore": This is slightly at variance with the definition used under the Foreshore and Seabed Endowment Revesting Act 1991, and subtly at variance with the definition used under the Resource Management Act 1991. To ensure minimal confusion with respect to the status of the subsoil the Board recommends adopting the RMA definition's use of the term "land" rather than the looser current wording "parts of the bed ... ".
21. Clause 3 and throughout: 1t is unclear to the Board why the Continental Shelf has been omitted from the various jurisdictional references - since this greatly exceeds the Exclusive Economic Zone [EEZ] in many instances and will be lodged for confirmation in the next few years [currently anticipated in 2006] as required under the United Nations Convention on the Law of the Sea by 2009. If it is determined that coastal states may impose marine reserves within the EEZ, the Continental Shelf should also be included under this Bill under clause 5: Application of this Act. Indeed the Board notes that clause 129 amends the approval process of the Continental Shelf Act 1964 but is otherwise silent.
22. Clause 4: The present clause is unspecific with respect to precisely what is meant by the terms "enforcement activities" and "operational activities". The Board is concerned that these terms could be interpreted very liberally. For example, to include routine training exercises with live ammunition. The clause should be amended to provide some direction in that regard - particularly with respect to NZ's internal waters and territorial sea.
23. Clause 7: The expressed Purpose is "to conserve indigenous marine biodiversity...". The Board broadly agrees with this Purpose but considers it too narrowly expressed. We are aware of the New Zealand Conservation Authority's recommended revised wording and adopt that submission.
24. The Board also notes that the verb "conserve" is not defined - as it is in the Conservation Act. As both qualifying verbs "preserving" and "protecting" are defined, the Board recommends that "conserve" be defined to avoid confusion with these secondary terms.
25. Clause 12(3)(a): The Board does not support the presumption that anchoring is a permitted activity unless otherwise "overridden" by subclause (5). The Board recommends the reverse presumption - that is that anchoring is only permitted if a provision in a management plan or subclause (5) mechanism permits.
26. Clause 12(3)(d): Amend to make it clear that once existing licences expire no mining activities will be permitted, and no application may be made, in marine reserves established under this Act - and make such consequential amendments as are necessary.
27. Clause 13(1): A marine reserve conservation management plan may also provide guidance on certain trivial permitted activities and should be included as a new subclause (c).
28. Clause 17: The Board considers that it is unnecessary and cumbersome to have this consenting role rest with the Minister. Conservation Boards have been established to provide local, independent advice to conservancies on conservation matters and should be the confirming authority with respect to particular reserves.
29. Clause 18(4)(a): The Board strongly supports the present subclause - as long as the Bill retains a single purpose and marine reserve classification. However, the Board's preference is for a better graded system of marine reserve classes - in which case customary take, for example, may be quite appropriate.
30. Part 3 subpart 1 - Managers and advisory bodies: the Board supports the option of establishing management boards and/or reserve committees for marine reserves, but seeks an amendment requiring the Minister to consult with the local conservation board prior to deciding whether to appoint such a body and with regard to potential candidates for appointment.
31. Clause 24(2): The Board is strongly of the view that any advisory body should be attached to the local Conservation Board to avoid unnecessary administrative duplication. A reserve committee could be formed as a sub-committee of the Conservation Board with additional co-opted members as required. This clause should be amended accordingly.
32. Clause 35: This clause should be amended to also enable any Conservation Board to advise the Director-General, lest it be interpreted as restricting that current ability.
33. Clause 39 following - Management plans: The Board supports these administrative and procedural provisions. In its broader experience with conservation management plans [as well as specifically with regard to the Leigh Reserves Complex CMP covering Cape Rodney - Okakari Point marine reserve] such a process is essential to gaining and maintaining local trust and commitment.
34. Clause 44: The Board does not support the requirement that the Minister approves marine reserves management plans. Currently this function lies with the local Conservation Board, and the Board is not aware of any problems caused by that "route" that justifies removing the function to the Minister. Indeed local acceptance of reserves and management plans is arguably increased by locating the function locally. Clause 44 should be amended accordingly.
35. An alternative amendment, if the Minister wishes to retain the option of appointing a Conservation Board as a management committee, is to retain the Ministerial approval function for those situations only.
36. Clause 48(a): amend to specifically include a requirement to consult with the local Conservation Board.
37. Clause 63: Perceptions are that significant delays arise in the present regime from the lack of any timeframe for concurrent Ministers to respond to proposals. This clause is therefore strongly supported by the Board. However it remains uncertain as to what is to happen if a Consultation Minister fails to respond within the due period but indicates an intention to do so subsequently. It appears from clause 64 that the Director-General is then bound to proceed. To avoid future doubt this should be clarified.
38. Clause 109 Strict liability offences: The Bill proposes a schedule of offences for activities that occur within a marine reserve. However, no offence is listed for activities that occur beyond a marine reserve but that impact upon and within a marine reserve - such as, for example, the release of contaminants from land or to the sea adjacent to a marine reserve. The Board recommends this for inclusion as a separate identifiable offence.
39. That this Committee grant such relief as is necessary to incorporate the points raised in this submission and, specifically:
a) Amend clause 3 to include a definition of “conserve".
b) Amend clause 3 definition of “foreshore".
c) Amend clause 3 to include a definition of the Continental Shelf.
d) Amend clause 5 to provide for the Continental Shelf.
e) Delete clause 12(3)(a) and consequential amendments to clause 12(3)(b) to make it clear that normal operation does not include stopping and anchoring, and to clause 17(1).
f) Amend clause 13(1) to include a new subclause (3) relating to the provisions of an approved management plan prepared under Part 3 - and consequential amendment to clause 16(2).
g) Amend clause 17(1) to remove the reference to the Minister and substitute a reference to the Conservation Board. Amend clause 17(7) to make it clear that the Conservation Board must advise the Minister, who in turn must advise other relevant Ministers.
h) Amend clauses 20, 24 and 27 to provide for consultation with local conservation boards regarding the establishment and composition of management boards and/or reserve committees.
i) Amend clause 24(2) to establish conservation boards as the relevant marine reserve advisory body, with a power for the Minister to appoint additional members to that subcommittee in consultation with the respective Board. Make consequential amendments to clause 27 and Schedule 1.
j) Amend clause 35 to enable Conservation Boards to continue to advise the Director-General on marine reserve matters
k) Amend clause 44 to provide Conservation Boards with the function of approving marine reserve management plans.
l) Amend clause 48(a) to specifically include a requirement to consult with the local Conservation Board.
m) Amend either clause 63 or 64 to make it clear that the final report must be provided to the Minister irrespective of whether Consultation Ministers have responded, and that no extension in time is permitted.
n) Make a consequential amendment probably to the Resource Management Act 1991, establishing the discharge of a contaminant to the environment in such a manner as to adversely affect a marine reserve as a special offence with appropriate penalties.
o) Amend clause 129 to provide for an additional offence, being activities occurring beyond the reserve that directly impact upon and within the reserve.
p) Amend clause 120 to include the Continental Shelf.
The Board wishes to be heard on its submission. The Board wishes to be advised of the dates for hearings both in Wellington and Auckland.