Implementing the Fiordland Marine Conservation Strategy

Executive Summary

Introduction

The Fiordland Marine Conservation Strategy

Proposed Management Measures

Options for Implementing the Strategy

Conclusion: The Investigative Group's Preferred Implementation Option

Summary of Findings and Recommendations

Appendix 1: Terms of Reference for the Fiordland Marine Conservation Strategy Investigative Group

Appendix 2: Analysis of the Ability of Current Marine Legislation to Implement the Management Measures in the Strategy

Appendix 3: Fisheries Management

Appendix 4: Values of Special Significance

Appendix 5: Risks to the Marine Environment

Appendix 6: Expressing Kaitiakitanga (Stewardship)

Appendix 7: Information and Monitoring

Appendix 8: Implementing the Strategy

Appendix 9: Compliance and Enforcement

Appendix 4: Values of Special Significance

Management measures

The Guardians' Strategy identifies two types of special areas:

• 'Representative areas': these contain a range of habitats, communities and diversity that represent Fiordland's marine environment.
• 'China shops': these are small discrete areas that are outstanding for the abundance and/or diversity of animal or mixed animal and plant communities or for the abundance of particular animal species.

The management measures associated with each type of special area are discussed below.

Representative areas

Fiordland's marine habitats and biodiversity can be encompassed by a selection of representative areas. Such an approach is advocated in the New Zealand Biodiversity Strategy released in 2000. The target of 10% of the marine environment in marine protected areas by 2010 is expressed in the New Zealand Biodiversity Strategy, which was prepared to meet our international obligations under the Convention on Biological Diversity. The Guardians have recognised the relevance of such an approach for Fiordland's marine environment. The Guardians decided that 'representative areas' could be more easily defined and would provide a more useful basis for advancing the Guardians' objective.

The Guardians and their advisers identified eight representative areas that represent estuarine, inside fiord and fiord entrance habitats, including one entire fiord system, four entire fiord arms and three other substantial areas. The Guardians believe that these areas are special from both a national and international perspective. The primary purpose of identifying representative areas is to ensure that community structure and biodiversity in these areas is not unduly compromised by human activity. The Guardians indicated that these representative areas would probably be best protected by creating marine reserves and confirmed that decision in following discussions and meetings with the Investigative Group.

China shops

On the basis of local knowledge and the best available information, the Guardians identified 23 china shops from Bligh Sound to Preservation Inlet. The Guardians believe that collectively these areas support a wide range of special features and values. It is also anticipated that as additional information becomes available through future studies further china shops may be identified.

The china shops can be divided into two types: those that are within representative areas, and those that are not. The china shops that are within representative areas will be subject to the provisions of the representative areas as a minimum level of management, and may be subject to more intensive or restrictive measures as necessary.

The Guardians propose that in areas defined as china shops:

• a code of practice should be established for their use
• diving and anchoring should be managed if the area is under threat from existing or future activities.

In addition the Investigative Group have indicated that china shops should be places of targeted monitoring: this is discussed in Appendix 9: Information and monitoring. In some cases visitor numbers also need to be managed, this is discussed in Appendix 5: Risks to the marine environment.

Following monitoring china shops may be considered to be significant enough or subject to degradation to warrant further protection.

Options for implementation

Representative areas

The Guardians suggest that marine reserves are the most appropriate tool to protect representative areas, however they identify a number of concerns around the final form of the new Marine Reserves Bill, including whether it will be able to manage recreational activities and whether or not Kaitiakitanga will be able to be adequately expressed. In addition, the Investigative Group have had a number of discussions about the storage of rock lobster pots in marine reserves and how marine reserves could be implemented by September 2005. These issues are discussed below.

Managing recreational activities under the new Marine Reserves Bill

Access to marine reserves can be controlled under the new Marine Reserves Bill where there is a need to protect the features that a reserve was designed to protect. That is, 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. 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.

Under the Bill a concession system will be used to authorise commercial operators, research, and activities that are otherwise prohibited (clause 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.

Managing anchoring and visitor numbers can be regulated under the both the Marine Reserves Act and Bill. Extractive activities such as mining or dredging are prohibited under the Marine Reserves Act. Anchoring can be regulated under the Marine Reserves Act. Section 3(2)(d) explicitly provides for public access and enjoyment. However conditions may be imposed restricting this public access and enjoyment where such restrictions would be necessary for the preservation of marine life or for the welfare in general of the reserves. Thus under the Marine Reserves Act conditions may be imposed on public use. Note that these could only be imposed in circumstances where it was considered necessary to do so for the preservation of marine life or for the welfare in general of the reserves. A blanket ban on access would not meet the requirement for the imposition to be "necessary for the preservation of marine life or for the welfare in general of the reserves". However, a condition could be imposed banning diving from certain areas if that diving was shown to be harmful to marine life.

Kaitiakitanga

The Guardians were concerned about allowing for Kaitiakitanga to be adequately expressed in any marine reserves that are created. This is critical given that customary fishers are making a 'gift' through extinguishing their ability to fish within proposed marine reserves.

Under the Marine Reserves Act, a condition attaching to the Order in Council establishing the marine reserve may make provision for the collection of taonga and may provide a role for kaitiaki appointed by tangata whenua. In addition tangata whenua could be appointed to the advisory committee for the marine reserve. Permits to take anything from or place anything in a marine reserve may be granted by the Minister.

The Bill also requires tangata whenua to be included on any management board or advisory reserve committee that may be appointed (clause 27), and to be consulted on any management plan (clause 40). 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.

In the Marine Reserves Bill, advisory committees provide ongoing advice about the state of a reserve, management plans must be reviewed at least every 10 years and provision is made to amend or add to the conditions in the Order in Council establishing a reserve if this would enable the purpose of the Act to be better met.

The Investigative Group recommends that, when creating the marine reserves, the Department of Conservation will make an Order in Council to allow the collection of taonga listed in the Ngai Tahu Settlement Act [Need to list taonga in the Act.] and for the recognition that Taonga in marine reserves are to be managed by tangata tiaki.

Taonga collection will be managed by tangata tiaki, similar to the way that customary fisheries are managed under the Fisheries Act. This is also discussed in Appendix 6: Expressing Kaititakitanga.

Coffing

Due to the remote nature of Fiordland, rock lobster fishers have stored their pots at certain points around Fiordland. These sites are characterised by soft sediments in relatively shallow sheltered sites. There are a limited number of these sites within Fiordland. Due to the recent increase in live rock lobster exports, fishers have had to store caught lobster prior to transportation from the Fiords to packaging and handling facilities prior to export. Fishers have coffed (stored) these lobsters in cages on the same sites they use to store lobster pots. Some of the coffing sites are within proposed representative areas, where the Guardians' recommend that marine reserves are created.

If no provisions can be made for coffing, then the Guardians suggest excluding these areas from the proposed marine reserves due to the lack of alternatives for coffing within Fiordland. Provision for storing rock lobster pots and holding (coff) pots can be made if the pots do not fish while being stored. Special conditions can be implemented when the reserve is established under (section 5(9)). Clearly the rock lobsters and other marine life could not be caught in the marine reserve.

The Department of Conservation and the local fishers that would be affected, will work together to identify which fishers store their pots and coff their lobsters at particular sites. They will also determine the nature of the seabed substrate and its susceptibility to damage (e.g. a sandy or muddy bottom might be resilient to the effect of pots), how many would be stored at any one time and whether the area was used by divers and others for recreational purposes and, therefore, whether the presence of coff pots would detract from the experience. If agreement cannot be reached, these areas will be removed from the proposed marine reserves.

Creating marine reserves by September 2005

Creating marine reserves involves a significant and often lengthy statutory process run by the Department of Conservation. There is also no guarantee that any of the marine reserves proposals would be successful. For the package of management measures to be implemented on a common start date, the normal processes for establishing marine reserves needs to be set aside and replaced by special provisions in legislation to create eight separate marine reserves.

Review

Marine reserves are established in perpetuity. There is nothing in the Marine Reserves Act which explicitly allows for the decision to establish to be reviewed and amended or revoked. However, the power to make or issue an Order in Council includes the power to amend or revoke it or revoke it and replace it with another. [See section 15 of the Interpretation Act 1999.] Consequently, under the Marine Reserves Act any decision to establish a marine reserve may be reviewed and amended or revoked. Note also that management flexibility can be achieved via the imposition of conditions. Conditions can be as detailed and specific as desired and can have time frames on them. For instance, there may be a condition that sets a daily bag limit for Groper in a specific zoned area of a marine reserve, but specify that this restriction will be reviewed on an annual basis and amended or revoked as required.

The Marine Reserves Bill provides a process for reviewing reserves, or their boundaries (clauses 73-75), but a reserve's status would only be removed if the reserve no longer met the purpose of the Act.

To conclude, the Investigative Group has determined that marine reserves are the most appropriate way to protect representative areas, however these will need to be created by new provisions under the Marine Reserves Act, or under new legislation in order for them to be completed by September 2005. It is important to note that educational material will also need to be produced on the new marine reserves.

China shops (outside the representative areas)

The Guardians propose that in areas defined as china shops:

• codes of practice should be established for their use
• diving and anchoring should be managed if the areas are under threat from existing or future activities.

These are discussed under the headings below.

Codes of practice

Each of the china shops outside the representative areas needs a code of practice to set out recommended ways of behaving in these areas. The codes of practice will recommend where to anchor, and places that are not appropriate for scuba-diving, or how diving should be undertaken in those areas.

Environment Southland will be responsible for establishing the codes of practice and will work with the Fiordland Marine Guardians set them up.

Diving

Environment Southland has a policy to recognise the recreational diving value of the coastal waters of Fiordland as being of international significance, and to maintain and enhance these values [Policy 14.3.1 of the Southland Regional Coastal Plan].

Most of the people who dive in Fiordland gain access by charter boat. Environment Southland are able to manage these divers by managing the amount of commercial surface water activity that goes on [Section 16.1 of the Southland Regional Coastal Plan], and restricting where the divers go, by attaching conditions to their resource consents. The china shop 'zones' should be recognised in the Southland Regional Coastal Plan, so that Environment Southland can regulate the charter boats through the resource consents that they apply for.

Changes to the Southland Regional Coastal Plan can result in a lengthy public submission process. Therefore, for the full package of management measures to be implemented at a common start date, the normal processes for changing the Southland Regional Coastal Plan needs to be set aside. This would require special provisions in legislation relating to the creation of the relevant plan changes.

The updated plan would need to be notified and new copies produced.

Anchoring

Anchoring (and moorings) are managed through the Southland Regional Coastal Plan (section 11.7.7), however anchoring is not possible everywhere in the Fiords because of the steepness of the sides and the depth of the fiords.

A map of suitable anchoring sites for the whole of Fiordland has been produced by Environment Southland, and is available at the back of the Coastal Plan. Environment Southland, in conjunction with industry, is currently working on an initiative that will update this map and identify whether these anchorage sites are still appropriate. A plan change would be needed to make amendments to the mooring and anchoring schedule and to alter the planning maps. As discussed above, this would require legislative change.

Summary

The management measures to protect values of special significance are:

• representative areas:
  • establish marine reserves over the eight identified representative areas and any contiguous china shops
• china shops:
  • a code of practice should be established for the use of each area
  • diving and anchoring should be managed if the area is under threat from existing or future activities.

To implement these management measures:

• marine reserves:
  • for the full package of management measures to be implemented at a common start date the normal processes for establishing marine reserves will need to be set aside and replaced by special provisions in legislation to create the eight proposed marine reserves probably as an amendment to the Marine Reserves Act 1971
  • educational and promotional material will need to be prepared in relation to these marine reserves
  • the Department of Conservation and identified fishers will reach agreement over the coffing and pot storage issues within representative areas in Fiordland
• codes of practice:
  • Environment Southland will create the codes of practice for each of the twelve china shop areas
• diving and anchoring:
  • the china shop 'zones' are to be recognised in the Southland Regional Coastal Plan, so that Environment Southland will be able to regulate charter boat activity through resource consents.

A change to the Southland Regional Coastal Plan will be needed to make amendments to the mooring and anchoring schedule and alter the planning maps. The normal process for changing the Southland Regional Coastal Plan would need to be set aside and replaced by special provisions in legislation, in order to meet the required deadline.