Regulatory impact statement

Statement of the problem and the need for action

The Marine Reserves Act 1971 (MRA) provides the strongest combination available of long-term, secure and comprehensive protection for marine sites. However its current purpose is to preserve marine areas in their natural state for scientific study. This does not reflect either the marine objectives of the NZ Biodiversity Strategy (NZBS) or that people now propose and value marine reserves for the benefits that arise from protecting marine life. The MRA also gives no practical guidelines on Treaty obligations, and few on the timeframes and processes for establishing and managing reserves.

Statement of the public policy objectives

A priority action in the NZBS is to protect “…10% of New Zealand’s marine environment by 2010, in view of establishing a network of representative protected areas.” Clarifying the purpose and processes in the MRA is required to help achieve this action (although it is expected that the protection of sites through other statutes would also be required to achieve it). A priority action in the NZBS is to review the MRA “to better provide for the protection of marine biodiversity, including extending its jurisdiction to protect marine biodiversity within and beyond the 12-mile limit”.

The terms of reference that Cabinet approved for this review included the following principles:

1. The Marine Reserves Act 1971 can be used, in conjunction with other biodiversity related statutes such as the Resource Management Act 1991 and the Fisheries Act 1996, to establish marine protected areas to protect a fully representative range of New Zealand’s marine environments and biodiversity, in line with the marine biodiversity protection objectives and targets contained in the New Zealand Biodiversity Strategy.
2. The geographical areas within the jurisdictional scope of the Marine Reserves Act will be sufficient to enable a fully representative range of New Zealand’s marine environments and biodiversity to be protected, including the protection of any specific area.
3. Marine reserves are one of a number of statutory marine protection and management mechanisms and will be established in a way that is complementary to the establishment and use of other statutory marine protection and management mechanisms.
4. Marine reserves establishment and management will be carried out in a way consistent with the Crown’s obligations to Maori pursuant to the principles of the Treaty of Waitangi and which recognises and reflects the statutory obligations to Maori under the Treaty of Waitangi (Fisheries Claims) Settlement Act 1992 and the Conservation Act 1987.
5. Marine reserves establishment and management will preserve and facilitate rights of access and entry to reserved areas for recreational purposes provided these are non-extractive and have no undue adverse impact on marine biodiversity and marine habitats within their boundaries.
6. Marine reserves establishment and management provide any interested person or persons with opportunities to participate in the statutory process of establishing marine reserves and in their ongoing management.

Statement of options for achieving the desired objectives

Non-regulatory measures

Legislative review cannot be achieved by non-regulatory measures.

Regulatory measures

Table 1 summarises the key changes to the Act proposed by the Department of Conservation (DOC) to achieve the terms of reference and compares these with the status quo.

The status quo either does not achieve the objective (in the case of options 2, 3, and 10 in Table 1), is less efficient or effective in doing so (options 1, 8, 9, 11, 12, 14 and 15), or is not transparent (options 4, 5, 6 and 13). The recommended option 7 establishes clearer accountability and a simplified decision-making process while still achieving the objective. In the exclusive economic zone outside the 12-mile limit, none of the available legal mechanisms enables the protection of marine communities and ecosystems in a natural state.

Table 1: The key issues and options that were considered in this review

Terms of reference		Option (a) (recommended option)	Option (b) (status quo)
(a), (c) Protection of biodiversity	1	Purpose redefined to focus on biodiversity protection	Areas protected in natural state for scientific study
	2	Marine reserves do not allow fishing	Minister has discretion to allow limited non-commercial fishing
(b) Reserves in the EEZ	3	Enabling marine reserves to be established in the EEZ	Limiting marine reserves to the Territorial Sea
(d) Treaty obligations	4	Include a Treaty section	Section 4 of Conservation Act applies
	5	Include specific provisions relating to tangata whenua on key issues	Obligations under section 4 of Conservation Act determine actions taken
	6	Review Minister’s decision-making criteria. Include provisions reflecting statutory obligations to Maori.	Retain current criteria. Consider effects on Maori through obligations under section 4 of Conservation Act.
	7	Repeal concurrence role of Minister of Fisheries, but require consultation with Minister and have clear criteria.	Retain Minister’s concurrence role
(e) Rights of access and entry	8	Clarify principles for access and use	Maintain existing access and use principles
	9	Set up concession system for commercial operators	No concession system
(f)  Involvement of tangata whenua and public	10	Allow anyone to apply for a reserve	Restrict applications to DOC, organisations with an interest in research, and Maori.
	11	Provide timeframes for consultation and decision-making process	Few timeframes
	12	Process for holding meetings	No process specified
	13	Reserve committees under the Act.	Committees under Conservation Boards
	14	Allow potential for administering bodies to be appointed to manage.	No provision for administering bodies. DOC manages all reserves.
	15	Provide in the principles for public use and enjoyment of reserves where appropriate.	The only use recognised in the Act is scientific study in the purpose; and the opportunity to study, observe and record marine life in the principles.

Statement of the net benefit of this proposal

Benefits

The likely benefits from the proposals for the Marine Reserves Bill include:

• Providing a clear role for the MRA to contribute to NZ Biodiversity Strategy objectives, and as a basis for co-ordinating its role with those of other marine management tools.
• More transparent recognition of the Crown’s Treaty obligations.
• Recognition of the importance of public use and enjoyment of reserves, for recreation, scientific study, education and matauranga Maori purposes, and facilitating these where appropriate and where they do not compromise the conservation of marine biodiversity.
• Providing more and clearer opportunities for local involvement in ongoing reserve management.
• Reducing duplications in processes and associated administration costs.
• Improving transparency in the application process.
• Reducing delays in applications and the associated public frustration and administrative costs.

Costs

Administrative costs are not imposed directly by the Bill, but depend individually and in total on the number and circumstances of new reserves applied for and established under the new Act.

Most of the proposed changes are cost neutral as to administrative costs. Although they may add a new step to statutory processes, this tends to make transparent and formalise what already usually occurs. For example, the requirement for a mandatory independent review when DOC is the applicant, and the proposed provisions in the Bill relating to tangata whenua. Treaty issues are currently addressed through section 4 of the Conservation Act 1987, which requires DOC to give effect to the principles of the Treaty, at least to the extent that the provisions of the MRA are not clearly inconsistent with these principles. Reducing delays to the process by establishing timelines should also, overall, reduce the staff time that is needed for consultation and providing advice to the Minister.

Establishing committees under the MRA would not significantly change the administrative costs of committees as they will be sought in similar circumstances, whether under the MRA or under Conservation Boards, as now. The initial additional administrative costs of establishing an administering body would be offset by reduced management-related administrative costs, as it is not proposed to transfer operating funds to the administering body. Revoking the status of a reserve would incur costs but is expected to be very rare.

On balance, the approximate average costs for each reserve in the Territorial Sea are expected to be similar to that under the current MRA. These costs include:

• $75,000 one-off costs for the application process (notification, public consultation, independent review, and DOC staff time).
• $90,000 one-off costs to set up a reserve (markers and signs, establishing facilities, pamphlets, initial local public awareness on reserves and their rules, baseline monitoring).
• $75,000 annual management costs (biological monitoring, maintenance (e.g. of markers), committee costs, boat running, administrative enforcement-related costs).
• $50,000 one-off capital cost for boat purchase, and $10,000 annual depreciation.

Application, set-up and management costs for marine reserves in the EEZ are expected to be less than reserves within the 12-mile limit as, for example, consultation would be more targeted and boundary marking would be done through geographic co-ordinates rather than through signs and buoys. Overall, reserves in the EEZ are not expected to increase reserve administrative costs, as only a limited number will be established each year, whether in the EEZ or Territorial Sea or both.

It is difficult to predict total enforcement costs. The government’s maritime patrol review may aid enforcement in the Territorial Sea, and be a major component of enforcement of reserves in the EEZ. The maritime patrol review may also reduce overall enforcement costs for marine reserves, because the costs of any DOC contribution to the patrol would be shared amongst its marine interests, and because there will be efficiencies between different agencies’ activities.

Two options are proposed in the Cabinet papers on compensation: that the Bill should be silent on, or preclude compensation when a reserve is established. MFish considers view that the proposal to remove the ability to seek compensation will increase the risk of judicial review being sought over the decision-making process, necessitating a very robust consideration of adverse effects.

The costs of setting up and managing new marine reserves will be met from additional funding allocated to DOC in the budget package to implement the NZBS. This package allocated $11.5 million (GST incl.) over five years, beginning in 2000/01, and includes funding for enforcement, biological monitoring, technical support, and a public awareness strategy.

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