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 8: Implementing the Strategy

Management measures

The Guardians' Strategy includes a number of recommendations about how it should be implemented, including:

• creating a forum for integrating management in Fiordland
• use existing statutory mechanisms or changes to legislation
• management measures to be implemented by September 2005
• disallowing new marine reserves
• defining the area that the management measures apply to.

Their recommendations are summarised under each heading below with commentary and recommendations from the Investigative Group.

Creating a forum for integrating management in Fiordland

The Guardians believe they have demonstrated the value of combining local skills and knowledge with agency advice. They also believe that they have provided a forum for agencies to step outside their own boundaries and think about issues collectively and that this can provide for a more holistic management approach that is inclusive of stakeholders.

The Guardians believe that they are capable of providing oversight for the management of Fiordland's fisheries and marine environment.

The Investigative Group have discussed these recommendations at length, and has come to the conclusion that it is appropriate for management agencies to retain the responsibilities and functions that flow from their respective legislation. Additionally, it is recommended that a new be role created for 'Fiordland Marine Guardians', formed from the local community. This group will be independent of the current Guardians of Fiordland's fisheries and Marine Environment Inc. and their role would be to provide advice to the Government on the implementation and effectiveness of the Strategy.

Using existing statutory mechanisms or changes to legislation

The Guardian's suggest that the most of the management measures in the Strategy can be implemented using existing legislation. The Investigative Group agrees and analysis within the main body of this report outlines how existing statutes can be used to implement the Strategy and where legislative change will be necessary.

The Investigative Group proposes that each agency will retain responsibility for management under their existing legislation; however, as a result of the implementation of the Strategy, there will be a number of joint projects between the agencies with management responsibilities in Fiordland. These projects include:

• an integrated approach to monitoring (described in Appendix 7: Information and monitoring)
• more co-operation between agencies on enforcement/compliance issues (described in Appendix 9: Compliance)
• joint production of educational material, such as the code of practice (described in Appendix 5: Risks to the Marine Environment).

Implementation by September 2005

To maintain the confidence of all the parties, the majority of the management measures must be implemented on a common start date. At the public meeting in Te Anau on 6 September 2003, the Ministers of Fisheries and the Environment committed the Government to implementing the Strategy by September 2005.

Disallowing new marine reserves applications

New (external applicant) marine reserves applications need to be prevented, because the process of application and decision-making under the Marine Reserves Act provides a significant opportunity to force the creation of a new marine reserve within the Fiordland area and in doing so, upset the management balance. Even if the application is ultimately unsuccessful, the mere process of application and objection could be detrimental to the trust and goodwill required to maintain the balance of the management regime.

Defining the area that the management measures will apply to

The area that the Strategy applies to will also need to be defined: the Fiordland (Te Moana Atawhenua) marine environment covers the coastal marine area of the Southland Region from a line due south of the eastern bank of the mouth of the Waiau River to a line due west of Awarua Point. This boundary will need to be recognised in the implementation of the management measures.

Options for implementation

Fiordland Marine Guardians

The Investigative Group recommends that an advisory committee called the Fiordland Marine Guardians be set up. The committee is considered to be an essential element of the new management regime as it will provide a focus for the community and management agencies to work together. Its primary tasks will be to take an overview of marine management in Fiordland, to provide a forum for management agencies to work together and to provide advice on ongoing marine resource management in Fiordland.

The committee could be set up in a non-statutory manner by Cabinet minute or by instruction from a Minister. However, if the committee does not have statutory recognition, any of the management agencies may find that their statutory functions are not sufficiently broad to allow them to give appropriate weight to the advice of the Fiordland Marine Guardians. They may be constrained by the purposes of their respective legislation, and this may preclude each from taking a more integrated approach to marine management.

Guardians made a number of recommendations about the function and membership of the group:

• the functions of the group need to be defined
• the membership of the group should be set according to a set of criteria that reflects the strengths of the current Guardians (local knowledge, experience and expertise).

The Investigative Group recommends that an advisory committee be established, rather than a committee with direct management responsibilities. The committee would have its functions defined in legislation. The role and functions of the 'Fiordland Marine Guardians' are discussed below.

Scope of the Fiordland Marine Guardians' role

a. To promote the purposes of the Marine Reserves Act 2004, Fisheries Act 1996, Resource Management Act 1991 and Biosecurity Act 1993, [The Biosecurity Act has a long title but does not currently have a purpose section. Wording would need to be adjusted accordingly.] through advising on:

• the management of marine reserves and recommending potential sites for new marine reserves
• the implementation of fisheries management measures to:
  • address the adverse effects of fishing on the maintenance of biodiversity
  • ensure the sustainability of fisheries resources
  • ensure appropriate and fair access to fisheries resources by recreational, commercial and customary fishers
  • where initiated by iwi, the implementation of customary site-based measures to provide for the exercise of kaitiakitanga (mataitai and taiapure).
• measures to manage biosecurity risks
• measures to limit visitor and boat access to prevent physical damage to marine habitats and communities.

b. Such other matters as requested by the Ministers of Conservation, Fisheries, and Biosecurity and the Minister for the Environment.

Functions of the Fiordland Marine Guardians

The Functions of the Fiordland Marine Guardians would be:

General

• To advise on the ongoing implementation of marine resource management measures within the Fiordland Marine Area, taking into account both national and local objectives.
• To provide advice on such other matters as requested by Ministers and the Southland Regional Council.
• To make submissions to formal consultation or statutory hearing processes in order to make submissions on how policy/developments in other areas might affect its interests.
• To provide a forum and processes for facilitating:
  • an integrated approach and cooperation between management agencies in the exercise of the specific functions listed below (note this would ensure that, although reporting to individual Ministers, the recommendations were arrived at following an integrated exercise)
  • dialogue between management agencies, iwi and stakeholder groups.
• To prepare and disseminate information and educational material.
• To complete a review of the management measures implemented by the Act after a period of not less than five years and not longer than seven years after the commencement of the Act.
• Make recommendations for the confirmation of, revocation of, or amendment to these measures and the implementation of any new measures to help promote the purposes of the Acts listed under 'Scope' above.
• To facilitate and provide advice on the development of an integrated monitoring programme for analysing the state of the environment.
• To develop indicators by which to measure the performance of marine management.

Marine reserves

• To operate as an advisory committee to the Minister of Conservation on marine reserves. (The Bill would deem the Fiordland Marine Guardians to be an advisory committee in lieu of the MOC appointing his own committee under the new Act.)
• To prepare a management plan for marine reserves collectively in Fiordland if requested by the Minister of Conservation.
• To monitor change in the structure and composition of the marine community and the densities of selected species following protection.
• Following the expiry of the moratorium, make recommendations to the Minister of Conservation on potential sites for any new marine reserves. (Note that the Minister of Conservation under the new Marine Reserves Act will be required to make information publicly available on the classification system, gaps in the existing suite of marine reserves, and Government's priorities for advancing applications in the medium term. This will assist the Committee.)

Resource management

• To produce educational material to help promote compliance with new and existing standards and codes of practice
• To promote an integrated and cooperative approach by management agencies to managing visitor numbers in Fiordland.
• Establish a code of practice for the use of each china shop area.
• To promote and manage diving activities if the area is under threat from existing or future activities.
• Manage anchoring if the area is under threat from existing or future activities.

Fisheries management

• Provide advice to the Minister of Fisheries on the implementation of fisheries management measures to:
  • address the adverse effects of fishing on the maintenance of biodiversity
  • ensure the sustainability of fisheries resources
  • ensure appropriate and fair access to fisheries resources by recreational, commercial and customary fishers
  • where initiated by iwi, the implementation of customary site-based measures to provide for the exercise of kaitiakitanga (mataitai and taiapure)
  • the location and relevance of the 'habitat lines'
  • means to encourage non-commercial harvesting to take place at the fiords entrances and along the outer coast.

Biosecurity

• To provide advice on and facilitate the establishment of codes of practice for hull-cleaning, identification of unwanted species and domestic ballast water exchange.
• To advocate for and work with a special taskforce to develop and implement a plan to address marine bio-invasion and other pest species specifically for Fiordland.

The Fiordland Marine Guardians would report on its functions to the appropriate Minister/local authority with statutory responsibility. Although the recommendations would go individually to the relevant agency/Minister, the critical element is the process of dialogue developed between the agencies and the Committee.

There will be a need for ongoing reporting.

Membership of the Fiordland Marine Guardians

Provide for the Committee be made up of representatives of non-government interests and officials from the key management/operational agencies. The latter could be appointed to the Committee in a non-voting capacity. This would allow the advice of the Committee to be viewed as independent but still ensure that it could work effectively in facilitating co-operation and integration across agencies. The Ministry for the Environment to provide administrative servicing.

Provide that members do not 'represent' any particular interest group, rather they should be people who represent the interests of Fiordland. They should be appointed for the particular skill and expertise and the perspective they bring. This means they do not need a formal mandate from the group they represent before voting or deciding on policy. While members will tend to advance the interests of the group from which they are drawn, this arrangement means that members have more scope to take a broader collective view on issues and compromise where necessary.

As the Fiordland Marine Guardians will be providing advice to the Government they will need to be appointed through the Appointments and Honours Cabinet Committee. This means that membership of the group is the Minister's choice and a formal process of appointment is followed according to Cabinet Office guidelines. The community will be able to offer suggestions, but ultimately the choice is the Ministers'.

The maximum membership of a ministerially appointed group is eight, otherwise the group would become too expensive and unwieldy. The Investigative Group suggests that the membership of the committee should broadly reflect the make-up of the Guardians of Fiordland in order to provide a suitable mix of local knowledge, expertise and experience. It will also be important for there to be representation of Ngai Tahu so that their status as Kaitiaki is recognised.

Implementation by September 2005

The statutory means to implement the management measures in the Strategy vary widely in both process and timing across the range of legislation:

• Fisheries management measures can be implemented reasonably quickly by regulation. [See Appendix 3 for further details.]
• Management measures implemented under the Resource Management Act will require changes to the Southland Regional Coastal Plan. This can result in a lengthy public submission process. [See Appendix 5 for further details.]
• Creating marine reserves can involve a significant and often lengthy statutory process. [See Annex 4 for further details.] There is also no guarantee that any of the marine reserve proposals would be successful.

For all of management measures to be implemented at a common start date, normal processes for amending the regional coastal plan and for establishing marine reserves would need to set aside and be replaced with special provisions in legislation, including:

• a schedule of necessary amendments to the Southland Coastal Plan
• a schedule creating the eight proposed marine reserves, as an amendment to the Marine Reserves Act.

The legislation would therefore set the agreed common start date for all the management measures.

A possible precedent for this is provided by the Forests (West Coast) Accord Act 2000. This Act set aside indigenous forestry lands to be different types of conservation land as at the date of the Act coming into force. The approach adopted in Section 8 of that Act could be followed. As an example: a similar type provision to Section 8 could be inserted declaring certain pieces of land (sea) identified in the Schedule to be "a marine reserve under the Marine Reserves Act".

Disallowing new marine reserves applications

Under the Marine Reserves Act (Section 5(1)) an applicant may make an application for a new marine reserve if they meet the criteria and follow the prescribed process. Applications are made at the discretion of the applicant and the right to apply for a new marine reserve in any particular area is not able to be fettered by a departmental policy decision. So long as the application is in accordance with the requirements of the Act, the Director General is bound to receive it and process it. It can not be refused.

The Director General is bound to allow the application to proceed on its merits; for it to be notified; and to refer objections and any answer to the Minister. Areas that are not the subject of an existing application could not be closed off to further applications. The Minister is then bound to make a decision as to whether or not any objection should be upheld and then in the event that no objection is upheld, the Minister is bound to go on and consider the substantive issue of whether he should make a recommendation that the area be declared a marine reserve .

The Investigative Group is of the opinion that the likelihood of a successful new marine reserve application is low, but the threat it would pose to the significant community support for the Strategy is such that it should be avoided. Because the process is set in statute, only a statutory amendment can prevent such an occurrence.

Hence it is proposed that a consequential amendment to the Marine Reserves Act (or new legislation) would be required to the effect that there would be a moratorium on new marine reserve applications within the area of the Strategy until the Strategy has been formally reviewed after five years.

Defining the area that the management measures will apply to

The Guardians proposed that the Fiordland marine environment would cover the coast and fiords from the eastern bank of the mouth of the Waiau River in the south to Cascade Point in the north. Their seaward boundary was flexible.

In order to have integrated management over defined resources and within a defined area the extent of the management area needed closer definition. It was agreed to shift the northern boundary from Cascade Point, which is in the West Coast Regional Council area, to Awarua Point, which is forms the boundary between the two regions (Southland and West Coast). This would more closely align the boundary with existing management responsibilities and prevent conflict or confusion with another regional council in another regional coastal area.

At either end of the area they provide sufficient geographical extension to create a boundary (buffer) that is likely to limit lateral incursion into the area from the north and the south/east.

The outer (or seaward) boundary is proposed to be the extent of the coastal marine area (the 12 nautical mile limit of the territorial sea) as this coincides with a simple, existing and recognised jurisdictional limit.

The advantage of these limits is that they reflect existing management boundaries.

The major disadvantage is that this precludes marine reserve establishment for five years (under the moratorium) over an area where there is currently no proposals for marine biodiversity protection (marine reserves).

Conclusion

The management measures around implementing the Strategy are:

• define the area over which the management measures will apply
• implement the full package of management measures on a common start date, and by September 2005
• prevent the creation of new marine reserves other than those agreed to in the Strategy for a period of five years
• establish and appoint a 'Fiordland Marine Guardians' to provide advice to the Government on the performance of marine management in Fiordland
• require a review of the performance of the management measures after five years
• require management agencies to take into account the advice of the Fiordland Marine Guardians.

To implement these management measures:

• all of these measures would be implemented as provisions within a new special statute for Fiordland:
  • an advisory committee called the 'Fiordland Marine Guardians' be established, that has its functions defined in legislation
  • fast-tracking the creation of new marine reserves, and changes to the Environment Southland Coastal plan, which will be necessary to meet the September 2005 deadline for implementation of all management measures
  • amending the Marine Reserves Act (or new Marine Reserves legislation) to the effect that there would be a moratorium on new marine reserve applications within the area of the strategy until the strategy has been formally reviewed. A consequential amendment to the Marine Reserves Act (or new Marine Reserves legislation) would be required.