Marine Reserves Bill: Policy Background and Key Features
STRUCTURE OF THE BILL
The Bill has the following sections:
General: Definitions of terms, how the Bill binds the Crown, areas
the Bill applies to and its effect on navigation, and the Bill’s relationships
to other Acts.
Purpose, Use: The purpose, principles, a Treaty clause, what activities
are allowed and not allowed in marine reserves, and how activities are
managed.
Management: How marine reserves are managed, how the public can
be involved through advisory or management bodies, and management plans.
Establishment: The application process, how the Minister decides
on an application, and processes for altering or reviewing reserves.
Enforcement: Enforcement officers, powers, offences and penalties.
Miscellaneous: Regulations, repeals, amendments and transitions.
Schedules: Schedule 1: provisions relating to management boards
and reserve committees; Schedule 2 repeals the existing Marine Reserves
Act and its regulations; Schedule 3 makes consequential changes to various
Acts and regulations.
WHY A NEW MARINE RESERVES ACT IS REQUIRED?
The review was prompted by the following problems with the 1971 Marine
Reserves Act:
The 1971 Act preserves 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 value marine reserves for a wider range
of benefits that arise from protecting marine life.
It provides no guidelines for how Treaty obligations would be met.
It does not include appropriate linkages with recent marine management
legislation.
Some timeframes and processes are vague or not specified, which has contributed
to significant delays in decisions being made on reserve applications.
THE POLICY UNDERLYING THE BILL
Protecting Biodiversity
This Bill helps to implement the NZBS, which itself was developed in part
to fulfil commitments made under the international Convention on Biological
Diversity. One of the priority actions in the NZBS is to review the Marine
Reserves Act (MRA) to better provide for the protection of marine biodiversity.
“Biodiversity” refers to the variety of different types of ecosystems,
the variety of species of living things, and the variety of genes that
each species contains. The Bill focuses on protecting marine communities
and ecosystems, including examples of all the more widespread and common
types as well as sites that are outstanding, rare, distinctive or important.
It is important to include all these types to effectively protect biodiversity.
The Act is therefore also extended to the exclusive economic zone (EEZ),
to include all of NZ’s marine communities and ecosystems.
Enabling People to Enjoy Marine Reserves
A fundamental principle of the current MRA, and of the Act that governs
national parks on land, is people’s freedom to enter and enjoy these areas.
The Bill keeps this principle, subject to ensuring the natural values in
marine reserves are not harmed (cl 9(e), 12(1)).
Principles of the Treaty
The processes in the Bill for establishing and managing marine reserves
should:
Be consistent with the Crown’s obligations to Maori under the principles
of the Treaty; and
Recognise and reflect the statutory obligations to Maori under the Treaty
of Waitangi Fisheries Claims) Settlement Act 1992 and the Conservation
Act 1987.
Sound Decision-Making Processes
The Bill deals with processes for establishing marine reserves in some
detail. The current processes have proved cumbersome and lengthy. The aim
in the Bill is to provide a well-structured and efficient process that
provides:
Appropriate public notification of reserve proposals and appropriate and
meaningful opportunities for Maori, public and stakeholder participation;
Certainty to all parties about what is expected of them;
Clarity about how the process will be managed, by, for example, including
timeframes at each stage of the process; and
Clear guidance for decision-makers.
Involving the public in management
Local support and involvement can be important to the success of a marine
reserve and its enforcement. The Bill establishes opportunities for people
to be involved in reserve management.
FEATURES OF THE BILL
The purpose: conserving biodiversity
The purpose of the Bill is to conserve indigenous marine biodiversity for
current and future generations, by preserving and protecting marine communities
and ecosystems within marine reserves (clause 7).
Principles are included relating to (cl 9, 10):
Maintenance or restoration of marine life within the reserves to a natural
state. Areas chosen for a marine reserves should be representative of the
ecosystem type(s) being protected, but do not have to be pristine;
Protection of historic features within reserves;
The provision of undisturbed areas for research and education;
Allowing use and enjoyment of marine reserves; and
A precautionary approach to decision-making.
Treaty Issues
The Bill includes a Treaty clause that requires the Act to so be interpreted
and administered as to give effect to the principles of the Treaty (cl
11). This maintains the obligations that already exist through section
4 of the Conservation Act.
The Bill also contains specific provisions that recognise the Treaty
partnership:
The Bill recognises the importance of providing opportunities for research
contributing to Te Ira Tangaroa (Maori traditional and contemporary knowledge
relating to the life principle of the marine environment) (cl 9(d), 12(2)).
A reserve application cannot include areas within established mataitai
or taiapure (cl 49(2)).
The application process recognises tangata whenua and iwi or hapu who have
customary access to the proposed marine reserve area. The Bill requires:
Consultation with them from an early stage when a reserve proposal is first
being developed, and on a formal application (cl 48, 53(3));
The Minster to consider (when deciding whether or not to approve a reserve
application) whether there is an undue adverse effect on their ability
to undertake customary food gathering, or on their relationship with the
area (cl 67(2)(c)).
Once a reserve has been established, the Bill also requires tangata whenua
to be included on any management board or advisory reserve committee that
may be appointed (cl 27), and to be consulted on any management plan (cl
40).
Marine reserves in the exclusive economic zone
The Bill allows marine reserves to be established anywhere between mean
high water spring and the 200-mile outer limit of the exclusive economic
zone.
What activities are and are not allowed
Activities that are allowed
Recreational and educational activities; anchoring; the normal operation
of a ship; activities necessary for human safety, or to prevent serious
damage to property or the environment (cl 12(1), (3)), and the activities
of the NZ Defence Force (cl 4) are allowed in marine reserves. Boats may
also pass through a reserve (cl 5).
Mining, prospecting and exploration in any marine reserve for petroleum,
and in reserves within the 12-mile limit for other minerals, are managed
through the Crown Minerals Act and do not require a separate authorisation
under the Marine Reserves Act (cl 12). However these activities must only
have a “minimum impact”, which precludes activities that would breach the
MRA (cl 128). In contrast, mining for minerals in the EEZ under the Continental
Shelf Act requires the Minister’s authorisation under the Marine Reserves
Act (cl 129). This is because the Continental Shelf Act does not have the
decision-making procedures in the Crown Minerals Act that help to safeguard
the values of the reserve.
Activities that are allowed but need authorisation
The Bill also allows both scientific research, and research that contributes
to Maori knowledge about the marine environment (Te Ira Tangaroa). However
these require authorisation (cl 12(2)), both to monitor and manage potential
effects (for example, if the research includes sampling marine life), and
to limit disturbance from other activities on the research if this is required.
Prohibited activities
The Bill prohibits fishing in marine reserves (13(1)). This is because
experience internationally and in NZ and is that “no-take” provides significantly
better protection for marine life and is important to achieving a natural
state in reserves. Allowing fishing would also make it far more difficult
and expensive to manage and enforce marine reserves.
Other prohibited activities cannot be done without authorisation (Table
1, cl 13–15). These are generally activities with the potential to harm
marine life or other values in the reserve. There are some differences
in the rules for marine reserve within the 12-mile limit and those in the
EEZ, because of the limitations on NZ’s sovereign rights in the EEZ under
international law.
Managing activities in a marine reserve:
Reserves must be managed according to the purpose, principles and other
provisions in the Marine Reserves Act, any conditions in the Order in Council
which establishes the reserve, regulations, relevant statements of General
Policy, the relevant Conservation Management Strategy, and any approved
management plan for the reserve (cl 32).
Recreational and educational activities, research, concessions and anchoring
may be controlled by an order-in-Council, a regulation, or by a short-term
restriction under clause 17, but only if the controls are necessary to
protect the natural values in the reserve. All three mechanisms also require
the Minister of Conservation’s approval, which in turn protects the public’s
rights. Clause 17 allows immediate problems or urgent threats to be addressed
while formal, long term controls are established (if necessary) through
an order-in-Council or regulation.
A new feature in the Bill is that a concession system will be used to
authorise commercial operators, research, and activities that are otherwise
prohibited (cl 18). Concessions are not required for management activities
or for activities that the Bill explicitly allows.
The Bill uses the concessions system set out in Part IIIB of the Conservation
Act as it has established procedures and criteria for authorising activities,
and for monitoring and managing environmental effects. The concession fee
may be reduced or waived in situations that involve the public good, core
educational or non-commercial activities, or clear benefits to management.
Relationship with other Acts
Authorisations that are required under other Acts will still be required
(cl 6). For example, disturbing an archaeological site in a marine reserve
would require authorisation under both the Marine Reserves Act and the
Historic Places Act.
Public involvement in management
The Bill requires public consultation when developing a General Policy
for marine reserves (cl 34), or a management plan (cl 38, 40-45), and when
reviewing a reserve or its boundaries (cl 74).
Tangata whenua, the local community, and people with a particular interest
in a marine reserve can be involved in its management through advisory
bodies or management bodies.
Advisory bodies
The Minister may appoint an advisory body for a reserve managed by the
Department of Conservation (DOC) (cl 24). Its role is to provide advice
about the reserve, and to develop the management plan if one is required
(cl 26). An advisory body can be the Conservation Board, or a reserve committee
appointed directly through the Act (cl 27). The latter is a new form of
advisory body, and reports directly to the Minister.
Management bodies
The Bill also allows the Minister to appoint a management body to carry
out the day to day management of a reserve, rather than DOC (cl 20). However
the Minister must first be satisfied that the proposed body would have
the resources to do so, and that it would better achieve the purpose of
the Act for that reserve. A management body may be a local authority, another
Minister, a management board, or another person or body.
The Bill sets out the powers, functions and administrative procedures
of these bodies (cl 22, Schedule 1). They must develop a draft management
plan within three years (cl 37), which the Minister approves. They must
also provide the Minister with an annual report on their management of
the reserve and an audited financial statement (clause 28 in Schedule 1).
Management bodies are subject to the Ombudsmen Act 1975 and the Official
Information Act 1982 (except for local authorities, which are subject to
the Local Government Official Information and Meetings Act 1987).
Links to the NZCA and Conservation Boards
The NZ Conservation Authority (NZCA) may advise the Director-General on
any matter concerning the welfare of reserves (cl 35). A reserve committee
must include a member of the Conservation Board (cl 27). A reserve committee
must also consult with the Conservation Board when developing a management
plan (cl 40), and the Minister must consult with the NZCA before approving
the plan (cl 44).
The application process
Applications for marine reserves are generally of significant interest
to the public and are often contentious. The Bill provides a detailed process
so that all interests and values are fully taken into account (Figure 1,
cl 46-71). Key features are:
The ability for any person to apply for a marine reserve (cl 47);
Guidance on the preliminary consultation that must be carried out prior
to an application being made and the information required in an application
(cl 48, 49);
Requirements that a proposal must meet before it will be accepted as an
application (cl 48-51);
Participation by Maori, stakeholders, the public and government departments
through written submissions (cl 53-55);
Meetings to assist submitters to discuss issues and help resolve differences
(cl 59, 60);
Time limits on each stage of the process including on the Minister’s final
decision;
A requirement for an independent report where DOC is the applicant (cl
62);
Requirements that submission summaries and reports of meetings be made
publicly available to facilitate participation and an understanding of
the basis for decisions (cl 58, 60).
The decision-making process
The Minister of Conservation makes the final decision to recommend an order
in council to declare a marine reserve. The Bill removes the existing concurrence
roles of the Ministers of Fisheries and Transport. Instead, those Ministers
must be consulted along with the Ministers of Defence, Energy and Foreign
Affairs and Trade (cl 63). This ensures the Minister of Conservation has
good information on the implications of a reserve for other Crown interests
and obligations.
The Bill provides substantial guidance on the matters the Minister of
Conservation must have regard to (cl 65-67). The Minister must be satisfied
that a proposal:
Meets the purpose and is consistent with the principles in the Act;
Is in the public interest; and
Has no undue adverse effect on any activity or interest listed.
An adverse effect is not “undue” if the Minister is satisfied that the
benefit to the public interest in establishing the reserve outweighs the
adverse effect. The public interest includes both the benefits to biodiversity
conservation and other direct benefits that may arise from the reserve.
A review process
The Bill provides a process for reviewing reserves, or their boundaries
(cl 73-75), but a reserve’s status would only be removed if the reserve
no longer met the purpose of the Act.
Enforcing marine reserves
Enforcement processes are designed to provide the necessary tools to enforce
marine reserves effectively and efficiently (cl 76-125).
Enforcement officers and their powers
The Bill includes safeguards to ensure that only appropriately trained
and qualified people can exercise enforcement powers. It appoints customs
and naval officers to be enforcement officers, as well as DOC staff, fisheries
officers and police (cl 77). Only these people can use the more serious
powers in the Bill, including a limited power of arrest. They may exercise
their powers anywhere in NZ (cl 83), so that offences can be investigated
and evidence collected. The Bill also allows the Director General to appoint
members of the public to be honorary enforcement officers (cl 78). These
honorary officers must be trained and qualified in the same manner as DOC’s
officers, but cannot make arrests.
The ability to appoint naval, customs and fisheries officers facilitates
the inter-agency approach to enforcement that is envisaged in the Government’s
maritime patrol review.
Offences and penalties
Offences that can directly effect the integrity of a marine reserve are
strict liability offences (cl 109). This means that the defendant must
prove that they took all reasonable steps to ensure they didn’t commit
the offence, or that it was done in an emergency (cl 110).
There are four categories of penalties, depending on the level of seriousness
of the offending. Most offences fall into the second category.
Category of Offence
Maximum Fine
Imprisonment
Commercial take of marine life from a reserve
$250,000 and/or
6 months
Other serious offending that effects the reserve’s integrity
$100,000 and/or
3 months
Obstruction or corruption type of offences
$5,000 and/or
3 months
Less serious offending
$5,000
The Bill also introduces two new approaches for dealing with offences.
An infringement fee will be possible for all offences, except that of commercial
take (cl 93, 105-108). This means that an infringement notice will be able
to be issued for actions that are at the less serious end of the range.
A sentencing option of community service sentences provides an opportunity
to match the sentence more closely to offenders’ circumstances (cl 113).
Table 1: Summary of activities and how they are managed in
the Bill
Activity
Status under Bill
How managed in Bill
Activities allowed in all marine
reserves
Recreational activities
Educational activities
Anchoring
Allowed, subject to prohibited activities.
Order in Council, Regulation, or
short-term notice may limit if necessary to protect reserve’s values.
Scientific research
Research for Te Ira Tangaroa
Commercial operators (tourism etc)
Allowed, but requires a concession beforehand.
Activities for safety, preventing damage
Allowed.
Not controlled
Normal ship operations
Passage through a reserve
Allowed.
Not controlled if activity is within the relevant
specified definitions.
Mining (all within 12-mile limit, and for petroleum in the EEZ)
Allowed only if has “minimum impact” and is
authorised
Authorised and managed under Crown Minerals
Act, not MRA.
Pest control
If manager authorises
Manager authorises
NZ Defence Force activities
Act does not apply to enforcement
activities, or to operational activities in the EEZ, or to operational
activities in the Territorial Sea where there is a written agreement
Activities prohibited in all
marine reserves (both within the 12-mile limit and in the EEZ)
Fishing
Not allowed
No provision for allowing
Mining in EEZ (non-petroleum)
Not allowed unless authorised
By concession
Take material;
Take, modify, damage historic material
Damage, disturb, marine life, seabed etc
Introduce marine life
Erect a structure
Dump or incinerate
Use explosive or firearm
Not allowed unless authorised.
By concession.
Order in Council, regulation, or management plan may guide if and how
concessions are granted.
Activities prohibited in reserves
within the 12-mile limit (in addition to those prohibited in all reserves)
Littering
Discharge of oils, noxious liquids, garbage, fishing waste, untreated sewage,
other potentially harmful substances
Discharge sewage from outfalls
Discharge of ballast (unless for the immediate safety of the ship)
Land aircraft (except for emergency or for a navigational aid)
Not allowed unless authorised
Aircraft landing is allowed if it is operated by the NZ Defence Force
or Civil Aviation Authority
By concession.
Order in Council, regulation or management plan may guide if and how
concessions are granted.
Activities prohibited in reserves
in the EEZ (in addition to those prohibited in all reserves)
Discharge of oils, noxious liquids, garbage, sewage
Allowed only if within international standards
Seek international agreement to higher standards
if required
Figure 1: Summary of Application and Decision-making
Process
