The Marine Protected Areas Reform: NZCA Submission

Submitted 11 March 2016: View the NZCA's submission on the Marine Protected Areas Reform

Submission date: 11 March 2016
Submitted to: Ministry for the Environment

The need for a new approach to marine protection

Overview

The New Zealand Conservation Authority (NZCA) agrees that there is a need for reform of the marine protected areas legislation, and it supports the proposal for a new approach in principle. Unfortunately, we believe the proposed new reforms are lacking in ambition and do not provide a new strategic approach and falls short of best practise. We encourage consideration of the following before the bill is drafted.

The decision to exclude the Exclusive Economic Zone (EEZ) is a major failing of the proposed reforms. Initial proposals did include the EEZ and there is no analysis presented in the Consultation Document to satisfactorily explain why this has now been dropped. It is not sufficient to pass ad hoc special legislation to protect areas in the EEZ. Marine protected areas in the EEZ must be developed in the same manner as other marine protected areas. The discussion in the proposal for the exclusion of the EEZ is not convincing.

The lack of a clear purpose, fresh approach and no overarching marine protection framework setting out the principles and goals for the management of the marine environment are significant issues that are not addressed. The lack of a framework means there is no coherent way to develop a marine protected area system (as part of a wider sustainable marine environment – managed through the ecosystems based approach), nor is there an effective system for monitoring marine biodiversity.

Although the Consultation Document claims there are four 'new' protection measures, there are three which are not new nor a substantive improvement of current mechanisms. The fourth, the recreation fishing park proposal, is not a reserve or a protected area – it is a fisheries mechanism.

The proposal does not contain explicit recognition of the territorial and wider seas (EEZ) ecosystem services, including; production of oxygen, production of marine biodiversity including fish and shellfish, protection of migratory seabirds, production of key components for the development of (new) medicine, nutrient recycling, decomposition of waste, coastal protection, carbon sequestration to mitigate climate change, recreational opportunities and spiritual appreciation of the magnificence and diversity of the ocean. All of these elements of ecosystem services need to be considered in a properly managing the marine environment and in the creation of marine protected areas.

The proposal: a new approach to marine protection

Purpose of marine protection

The legislation requires a clear purpose.

Accordingly, NZCA suggests the purpose of the legislation should be the conservation and protection of marine biodiversity through the establishment of a comprehensive, effectively managed and representative network of marine protected areas, throughout New Zealand’s territorial sea and exclusive economic zone.

Analysis of the Objectives

Our views on the six objectives suggest that changes need to be made in order to strengthen them. Specifically:

Objective 1: A representative and adaptable network of MPAs is created over time to enhance, protect and restore marine biodiversity in NZs territorial sea

By not including the EEZ, we see it therefore as inadequate. It should include the EEZ. NZCA question “why only change for a small proportion” of the marine environment? About 95 % of New Zeland’s marine environment is outside of the territorial sea. We do support the concept of a network approach to the development of MPAs.

Objective 2: Decisions about environmental protection and economic growth are made in a planned and integrated way, based on sound evidence, to maximise the benefits to NZ.

We note the need for sound science to underpin decision-making. We also note the need to apply a precautionary approach to the management of the marine environment if there is significant uncertainty. The relatively unmodified or pristine marine environment is a reference library of natural capital.

Objective 3: Customary rights and values are recognised, ensuring the principles of the Treaty of Waitangi are met and the Crown’s Treaty obligations are delivered.

There is a need for the principles of the Treaty of Waitangi to be upheld and resulting obligations delivered. Concepts of mataitai and taiapure should be integral to the development of MPAs, to recognise customary non-commercial rights.

Objective 4: Collaboration is supported through meaningful engagement with iwi/Maori, local communities, business and the wider public.

We support the general concept of collaboration and engagement – but question how would it work, and how it will be integrated with other planning processes. There also needs to be links to wider communities. The legislation should include mataitai and taiapure, and the ability to make policies and regulations.

The collaborative approach can either be bottom-up (e.g. the Te Korowai approach) or top-down (e.g. the SE Otago Marine Forum). The legislation should include a requirement for a reasonable level of robust scientific evidence, recognising that marine science is not exhaustive and judgements will need to be exercised. This would avoid the Akaroa situation, which met the feel-good test ahead of the science.

Objective 5: Varying levels of protection and use are provided for, including consideration of all existing and future uses and values

We propose an alternate wording with a focus on biodiversity protection and a spectrum that includes sustainable use and allows partial protection. The law should allow for a spectrum of mechanisms with varying strengths of protection through a range of tools.

New wording suggestion: Protection of biodiversity and varying levels of use are provided for, including consideration of existing and future uses and values.

Objective 6: NZs international obligations in relation to the marine environment are met.

We support and note the numerous international obligations NZ has – in biodiversity (CBD) and wider (e.g. UNDRIP, UNCLOS,). The primary purpose of all marine protected areas should be marine protection. Recreational fishing parks are inconsistent with this.

Additional matters to be considered in a new approach

Further, NZCA is of the opinion that the elements of success for a marine protected area system include: community engagement/initiation; design principles; an approach which can take account of climate change and intergenerational review; a suite of tools that include spatial and customary tools; inclusion of the interface between the land and marine sea; and, an ecosystem-based approach where the water column, species, habitats and benthic environments are viewed as an inter-linked ecosystem.

The proposal has no linkage to the New Zealand Coastal Policy Statement and management mechanisms that it brings to the coastal zone. Many existing reserves include the coastal strip, particularly some of the existing marine mammal sanctuaries (e.g. the Ohau New Zealand Fur Seal Sanctuary on the Kaikoura Coast), and therefore require the coordination between the NZCPS and the MPA.

In addition, how will the proposed new regime fit with the Marine and Coastal Area (Takutai Moana) Act 2011 (MACA)? By the time the MPA Bill comes into effect all claims with MACA will be in place.

Sector involvement

Economic considerations appear to have been given more weight than biodiversity and other marine environment values.

The NZCA believes the aims of the oil, gas and mineral industries have been placed ahead of sound environmental practice. Their activities primarily occur in the EEZ, and outside the territorial sea. The proposal, to provide certainty for the sector through no marine protected area creation being possible for the life of a permit (unless the holder agrees), does not take into account sustainable management of the marine environment. It pre-determines there is a greater value (economic, social and environmental) to oil, gas and mineral mining as compared to other environmental, economic and social values. We believe that before oil, gas and mining applications are approved, a full assessment of the full range of marine environmental values must be undertaken: i.e. a full benefit/risk analysis.

The NZCA notes that there are other economic interests that have not been adequately examined; for example, bio- prospecting is not covered and it is known to be rapidly growing. The marine environment is a rich reservoir of unique life systems making them an attractive target for bioprospecting for identification and development of potential drugs for human therapeutics. Indigenous communities have developed, preserved and evolved marine traditional knowledge from one generation to next, and a mechanism for access and benefit sharing should also be included. There is a fundamental need to do an environmental risk analysis as important first step in the decision making process.

Marine tourism is not covered in the proposals, including; guided kayaking, marine mammal watching, and launch tours. These are becoming ever more popular, especially with the rapid expansion of the tourism sector (particularly international visitors). With the growth in the cruise industry, are ocean liners going to be permitted within marine reserves, e.g. Doubtful Sound?

Overall, the NZCA would like to see the application of a similar system to the land-based approach to the assessment of conservation values, and decision-making in the creation of new marine protected areas.

Outcomes

The proposed Act is not likely to have the intended effect that decisions about environmental protection and economic growth are made in a planned and integrated way (objective 2). The process, as set out in the document, appears truncated and local people may be ignored. A well facilitated collaborative process with strong technical and community support has delivered results. It is a flawed premise that a Board of Inquiry will deliver a better outcome. There needs to be better explanation of the trigger point between the collaborative and board of inquiry processes, rather than the simplistic statement that "the relevant Ministers will jointly decide". This does not provide a clear, transparent, decision-making process.

To achieve a strategic marine protected area network a programme of systematic identification of possible areas for protection will be required, rather than the current ad hoc approach.

How it will work: a new process for establishing marine protected areas

NZCA supports a new approach to identifying marine protected areas.

The best process for initiating MPA proposals in areas where multiple categories of protection may be needed is to follow the approach modelled and adapted from the Te Korowai (Kaikoura) and Fiordland Guardians examples – a multi-interest community collaborative process to achieve protection. Such processes must be well designed and supported. They may take time to yield results that are robust and enduring.

The NZCA is firmly of the view that a top-down process is not the best approach, where relevant stakeholders (particularly tangata whenua and the community) are not included. There must be proper tangata whenua and community involvement, and the process needs greater clarity on how it is triggered, if it is top-down, i.e. what thresholds must be met? How will a strategic approach be developed? The top-down approach needs to be a more robust transparent approach; and equally, triggers are required for the bottom-up approach.

Decision-making Process

The NZCA notes that experiences gained by the environmental NGO sector from their involvement in the Freshwater Management space show that the collaborative process (Objective 4) may not be the best way to achieve protection. While the process used for Te Korowai and the Fiordland Guardians has yielded positive results, care needs to be exercised as the process may be 'captured' by industry sectors that have more resources than community and volunteer groups. If the process is unduly weighted towards industry it may result in compromises more in favour of the industry sectors rather than the outcome being driven by the community.

Where environmental protection is one end of the spectrum, and full economic use at the other, any movement away from environmental protection is a loss, not a compromise.

Review Process

We do not agree that the proposed decision-making processes are sufficient to ensure customary interests, rights and values are appropriately taken into account, Treaty of Waitangi principles are met, and decisions are consistent with the Crown’s historical Treaty settlement obligations (objectives 3 and 4). It appears that the economic interests of the oil and gas sector are considered with significantly more certainty than the right of others, including those holding customary interests. This is considered at odds with the Treaty of Waitangi principles and the consequent settlement obligations.

Tangata whenua are firmly of the view that current generations cannot bind future generations to decisions made today, a parallel process to the Treaty of Waitangi process. This understanding must be at the heart of meaningful review processes established in the Act.

Over time, climate change (especially) or land-use processes may affect marine communities. This may create a need to reassess some protection of marine spaces, and the Act should reflect this. Changes would require a high threshold test to change protection decisions made in the present. A collaborative approach could still work.

Recreational fishing parks

The recreation fishing park proposal is not a reserve or a protected area, either within current usage of the term in New Zealand, or by the IUCN; it is a fisheries mechanism, not a protection tool. Accordingly it should thus be placed outside the MPA proposal, managed under the Fisheries Act 1996, or integrated into a wider concept of marine parks.

There is no underpinning rationale for the establishment of the two proposed recreational fishing parks: no research findings are provided to justify their inclusion within the proposed Act as a marine protection tool.

Should recreational fishing parks be kept within the Marine Protected Areas Act, the following management tools and safeguards need to be included and implemented:

1. Setting new, reduced, recreational fishing limits including:

Individual daily bag limits that reflect the intent of ‘fishing for a feed’
Vessel limits
Accumulation limits.
Recreational fishers being required to report their catch
Monitoring of recreational fishing takes, including managed surveys, checking of boats both at sea and at ports/ launching ramps

2. Recreational fishing charters, require the same daily bag limits and vessel limits as for all recreational fishers;

As proposed, a wide range of activities within the proposed recreational fishing parks would come under a concessions regime, as operates in land-based reserves and in national parks.

This would capture tourism activities including water taxis, guided kayak tours, charter fishers, diving, marine transport, commercial filming, recreation events and research to name but a few. Under current Department of Conservation processes, each of these would need a concession.

Water-based tourism activities are important to local economies, and to the tourism industry. The monitoring of these concessions will require substantial resources.

If a concessions regime was implemented for these parks, tangata whenua should receive discounted rates or be exempt for some activities. For example, should tangata whenua have to pay for access permits for research and monitoring in their own rohe moana?

There is potential for commercial fishing to be allowed to continue for some species within recreational fishing parks, targeting those species which are less likely to be targeted by the recreational fishers. In order to attain this, the concept of sustainable management must be introduced focussing on the whole ecosystems, not just on a few species.

Compensation Schemes

The NZCA is of the opinion that there needs to be better explanation of how the proposed compensation scheme for commercial fishing affected by the creation of recreational fishing parks will work, and how it will be calculated. Will it simply be a cash payment, or will some commercial quota be retired in exchange? In the short-term, retirement of quota would leave more fish available for recreational fishers but, in the longer term, in the context of already depleted stocks such as snapper, and a fast growing Auckland population, additional actions will also be required to maintain healthy recreational catches and achieve the objectives of the recreational fishing parks.

Compensation should flow to all commercial fishermen as well as the quota holders. Compensation provisions have been proposed for quota holders, who are part of the value chain. Consideration needs to be given to including charter fishers. In addition, quota holders often sub-contract to owner-fishers with a single boat, who need to be compensated.

Management

There needs to be greater thought given to the models for the management of the recreational fishing parks – should it be left to the community, or a combination of community, local and central government? There needs to be some form of ‘official’ oversight to ensure over-fishing is not the result. There is also a need for robust monitoring and information collection (including catch reporting) of the resource to ensure informed decision-making. The purpose would be to ensure sustainability of the resource and accordingly overall allowable catch limits will need to be set. Te Korowai is a good management model, and the legislation must be very clear on how the governance structure is established.

The role of tangata whenua should be integrated, respected and embedded in the overall approach and the document does not set out how that might be achieved.

The current proposals do not adequately define 'commercial' fishing. Are charter boats that take out groups of fishers commercial or recreational? What is the recreational take, and will catch reporting in fishing parks be enforced to monitor stocks? Monitoring of recreational fishers is very important. Parks could appeal to more fishers and end up with reduced stocks. Methods must be devised to monitor resources within the parks to ensure they are sustainable. Recreational fishing parks may attract more fishing and thus end up reducing resources.

Within the Act there should be a regular (e.g. 3 or 5-year) review of the Recreational Fishing Parks to provide for integrated management including marine reserve formation, taiapure and mataitai, integration with the RMA and marine farm considerations.

A governance board should be appointed for each of the Fishing Parks, charged with conducting the review as well as interim management of the Park. The Board would need to encompass the full range of interests including land use, tangata whenua, marine farming, as well as environmental interests.

Implementation

We believe that a range of tools are required for good marine protection outcomes, including mataitai and taiapure, to ensure that customary management areas should be able to be used alongside the proposed MPA network to create integrated management packages.

Iwi/Māori can play a significant role in managing MPAs. As we are finding with the new Kaikoura Marine Area, there are roles for both Te Korowai (the community group) and Kaikōura Marine Guardians (the ministerially appointed advisory group) as the two arms for ongoing management – and providing for the intersection between the community and statutory roles (as set out in the Kaikoura Marine Strategy).

The NZCA supports the concept of managing commercial tourism activities in MPAs in a similar way to how they are managed on public conservation land. Effective management can only be exercised where it is controlled, managed and monitored. There are some weaknesses in the commercial tourism management on public conservation land, but an adjusted and more robust and transparent approach is required that protects the marine environment and ensures payment for these ecosystem services that the business is based on are returned to benefit the management of the resource.

Other comments

The NZCA notes the following and asks that thoughtful consideration is given to these key points:

Well designed and properly managed marine protected areas are integral to an ecosystem based approach to marine management.

When designed and managed properly and combined with complementary measures through an ecosystem approach, networks of marine protected areas form safe havens for marine biodiversity. They protect and restore habitats and species, as well as restoring important ecological functions (such as spawning and nursery areas) and sustaining ecosystem goods and services.

2. Marine protected area benefits are numerous and include the following:

Coastal protection, protect habitats that provide a buffer against the impacts of climate change and a level of insurance against natural disasters.
The ‘ecosystem approach’ is essential for a healthy ocean. It is described as a comprehensive, integrated management of human activities based on the best available scientific knowledge about the ecosystem and its dynamics, in order to identify and take action on influences which are critical to the health of the marine ecosystems, thereby achieving sustainable use of ecosystem goods and services and maintenance of ecosystem integrity. This implies that human activities in ecosystems need to be managed in such a way that they do not compromise ecosystem components that contribute to the structural and functional integrity of the ecosystem.
Marine protected areas are one essential element of marine management – among others – for the delivery of an ecosystem approach and providing the framework to implement those measures, necessary to conserve the most critical ecosystems, including species survival and reproduction, migration corridors, spawning grounds, nursery areas, and storm protection that can prevent coastal erosion from natural disasters.
Fisheries benefits: Globally, MPAs have been shown to increase fish size, density, biomass as well as species richness. These increases are seen beyond the boundaries of the protected area, through the so-called spillover effect. This spillover effect applies to larvae, juvenile and adult fish moving beyond MPA boundaries. The community composition outside the protected area becomes like that inside, essentially exporting recovery beyond the protected area. As such, MPAs are an important tool in stock replenishment, long-term food security and fishing-related livelihoods.
Carbon storage: increasingly, marine ecosystems are recognized for their important role in fighting climate change through carbon sequestration – and, conversely, their potential to become sources of carbon emissions when degraded. Coastal vegetation – such as seagrass beds, mangroves and salt marshes – stores and sequesters carbon very effectively (Murray et al., 2011). The protection and restoration of coastal vegetation could provide coastal and island communities with important economic opportunities on the carbon offset market (Hastings et al., 2014).
Jobs and commerce: MPAs can support livelihoods for families and communities. They can also create jobs for managers and researchers. MPAs are known to attract and sustain coastal tourism and recreation, supporting growth of employment and commerce associated with these sectors at the local, regional and national level.
Cultural value: the ocean provides important cultural services – customary rights, aesthetic, artistic, educational, recreational, scientific and spiritual values.

3. Conservation Management Strategy tool

Although possible to consider marine protected areas akin to public conservation land, to which a Conservation Management Strategy (CMS) concept may be applied, we do not advocate this approach be directly applied to the marine environment. However we could learn from the land-based management and adapt and then apply this to the highly mobile marine space. It must cater for the spectrum from high-level protection to well managed exploitation of specific resources. A terrestrial CMS delineates management to exact boundaries. Its application to the highly mobile marine environment is challenging yet possible. A CMS type tool has the main benefit in application to the marine space of focussing on biodiversity management. The NZCA is of the opinion that such a focus is critical for the long term conservation and sustainability of the marine environment.

4. Government Marine protection and management agency

The NZCA believes there needs to be a commissioner/institute for oceans or a government agency that is focused on strategic marine protection and marine management – an integrated ecosystem approach at least at an over arching level. This would provide increased clarity of government agency roles and a process for resolution of policy and process issues between DOC and MPI. Also it will enable recognition of the full range of benefits from marine protection and sustainable management of our marine environment.

Background to the NZCA

The New Zealand Conservation Authority is established by the Conservation Act 1987, with members appointed by the Minister of Conservation. It has a range of functions, but primarily acts as an independent conservation advisor to the Minister and the Director-General. The Authority’s role has, in the past, been seen to be largely as a strategic advisor, but it has a growing role as an objective advocate on matters of national significance and interest in the conservation arena and, more recently, as a “board” to provide high quality independent advice to the Department of Conservation on its strategic direction and performance.

Current membership of the New Zealand Conservation Authority

In consultation with the Minister of Maori Affairs:

Waana Davis of Lower Hutt
Rauru Kirikiri of Wellington

In consultation with the Minister of Tourism:

Warren Parker of Rotorua
Mike Simm of Kerikeri

In consultation with the Minister of Local Government:

Jan Riddell of Winton

On the nomination of Te Runanga o Ngai Tahu:

Sandra Cook of Otautau and Christchurch

On the recommendation of Royal Forest and Bird Protection Society of New Zealand:

Gerry McSweeney of South Westland and Arthurs Pass

On the recommendation of Federated Mountain Clubs of New Zealand:

David Barnes of Dunedin

On the recommendation of the Royal Society of New Zealand:

Mick Clout of Auckland

From public nominations:

Devon McLean of Nelson
Jo Breese of Wellington
Judy Hellstrom of the Marlborough Sounds
Mark Christensen of Christchurch