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Options for Implementing the Strategy
Each of the management measures can be implemented in one or both of the following ways: [Table 2 describes which category each proposed management measure falls into.]
- through non-statutory agreements and measures (eg, the proposed special taskforceto address the risk of marine bio-invasion by pest species [There are many potential marine pest species, including ballast water and hull fouling species. The most commonly known exotic species is the Japanese kelpUndaria.] )
- through existing or new statutory measures (eg, fisheries bag limits through regulation or disallowing new marine reserves applications by amendment to the Marine Reserves Act).
The management measures not requiring statutory change can be implemented by the relevant management agencies. There are a number of options for implementing the management measures that do require statutory change, as described below. Regardless of which legislative option is chosen, it would be desirable for the non-statutory management measures within the overall package to be implemented at the same time as the statutory measures, to maintain consistency and the integrity of the package.
The Investigative Group considered four broad options for implementing the management measures that need statutory force. They are:
- Option A: Current legislation. Thisuses measures already available under the Fisheries, Marine Reserves and Resource Management Acts.
- Option B: Comprehensive new legislation. This would enact new legislation that would apply in the Fiordland area only, and effectively replace the Fisheries, Marine Reserves and Resource Management Acts within that area.
- Option C: Amendments to current legislation. This would amend the Marine Reserves, Fisheries and Resource Management Acts to enable implementation of those specific management measures not currently provided for.
- Option D: Special legislation incorporating amendments to current legislation. This wouldenact special legislation that would provide recognition for the Fiordland marine area and enable implementation of those specific management measures not currently provided for.
The Government has directed that the new management measures be implemented by September 2005. In order to meet this tight implementation timetable, and to lower the risk of unintended policy or legislative consequences, the Investigative Group agreed that existing legislation and management structures should be used wherever possible to implement the strategy.
The Investigative Group was mindful that new or alternative implementation methods could lead to concerns by those groups who were party to the 'gifts and gains' process - and undermine the integrity of the package as a whole.
In making its recommendations to Government on the implementation of the strategy the Investigative Group has had to ensure that the outcome will not be inconsistent with other relevant national policies, including Oceans Policy, the Marine Protected Areas Strategy, the Marine Reserves Bill and the New Zealand Biodiversity Strategy.
Option A: Current legislation
To implement the management measures in the strategy using current legislation, three existing statutes were considered to be most relevant: the Fisheries Act 1996, the Marine Reserves Act 1971 and the Resource Management Act 1991. The purposes of these Acts are described briefly below.
- The Fisheries Act 1996 provides for the utilisation of fisheries resources whilst ensuring sustainability.
- The Marine Reserves Act 1971 designates specified areas of the territorial sea, seabed, internal waters, foreshore and waters that are managed for scientific study and to preserve the marine habitat in its natural state. [The Marine Reserves Bill 2002 is currently before Parliament, and will eventually replace the Act. The Marine Reserves Bill 2002 includes a number of changes to the current Act. The Bill when enacted will provide a new process and broader purpose for the statute governing marine reserves.]
- The Resource Management Act 1991 is to 'promote the sustainable management of natural and physical resources'. This Act focuses on avoiding, remedying or mitigating the effects of activities within or on the marine environment.
Table 1 summarises the extent to which each of the above statutes is able to be used to implement the management measures in the strategy.
Table 1: Analysis of the ability of current marine legislation to implement the strategy
| Management measures in the strategy | Fisheries Act 1996 | Marine Reserves Act 1971 | Resource Management Act 1991 | Using the three Acts combined |
|---|---|---|---|---|
|
Fisheries |
Yes |
No |
No |
Yes |
|
Values of special significance |
Partly |
Yes |
Partly |
Yes |
|
Risks to the marine environment |
Partly |
Partly |
Partly |
Yes |
|
Expressing kaitiakitanga |
Yes |
Partly |
Partly |
Yes |
|
Information and monitoring |
Partly |
Partly |
Partly |
Yes |
|
Implementing the Strategy |
No |
No |
No |
No |
|
Compliance |
Partly |
Partly |
Partly |
Yes |
As shown above, each statute can be used to implement some management measures in the strategy; however no one statute can implement all of them. Appendix 2 provides further explanation to this table, by giving a brief summary of the purpose of each Act and the management measures that it can (or cannot) implement.
By using a combination of the Resource Management, Fisheries and Marine Reserves Acts, most of the strategy's management measures can be implemented but not all. This confirms the analysis presented by the Guardians.
Management measures not easily accommodated by existing legislation
Existing legislation does not easily provide for the following management measures:
Changes to the Southland Coastal Plan
Implementation of the management measure would require three changes to the Southland Regional Coastal Plan. First, diving in areas identified as china shops needs to be managed if the area is under threat from existing or future activities. China shop 'zones' therefore need to be recognised in the Southland Regional Coastal Plan, so that Environment Southland will be able to regulate charter boat activity through resource consents.
Second, anchoring in Fiordland needs to be managed if an area is under threat from existing or future activities. This would require changes to the Southland Regional Coastal Plan to make amendments to the mooring and anchoring schedule and alter the planning maps.
Finally, a hull-cleaning (and identification of unwanted species) code of practice, required for biosecurity reasons, needs to be backed up by regulations in the Southland Regional Coastal Plan.
The standard process for changes to the Southland Regional Coastal Plan can result in a lengthy public submission process. In order to meet the September 2005 deadline the normal process for changing the Southland Regional Coastal Plan would need to be set aside and replaced by special provisions in legislation. The updated plan will need to be published and new copies produced.
Creating eight new marine reserves
It is proposed to establish marine reserves over the eight identified representative areas including any china shops located within these representative areas or contiguous to them. Creating marine reserves under the Marine Reserves Act involves a significant and often lengthy statutory process. There is also no guarantee that any of the marine reserve proposals would be successful. To create the eight marine reserves by the September 2005 deadline requires setting aside the normal process for creating marine reserves under the Marine Reserves Act (or new legislation) and to create them with special provisions in legislation.
Disallowing further new marine reserve applications for five years
Under the Marine Reserves Act [section 5(1)] an applicant may make an application for a new marine reserve if they meet the criteria of the Act 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 cannot be fettered by departmental policy. In accordance with the requirements of the Act, the Director General is bound to receive it and process any application made if the applicant and application meets the criteria of the Act. [See Appendix 8 for more detail.]
A statutory amendment would be needed to prevent applications for marine reserves being made. Hence it is proposed to amend the Marine Reserves Act to place a moratorium on new marine reserve applications within the Fiordland area until a formal review of the management measures has been completed.
Appointment and advice of '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.
Option B: Comprehensive new legislation
Option B would involve crafting a new, comprehensive statute that would apply only to the Fiordland area and would replace functions under the Fisheries, Marine Reserves and Resource Management Acts within that area.
This would be a comprehensive solution to implementing all of the management measures. It would create a separate management regime from the rest of New Zealand, for fisheries, conservation and resource management. It would also provide specific and directive means for integration of the various management regimes and in particular it could list all of the various management measures required for Fiordland.
However, constructing both the policy advice and the new legislation would be very complex and time-consuming, as it would require careful consideration of how to replace longstanding legislation. It also runs counter to the group's intention to make use of existing legislation and management structures wherever possible to implement the strategy.
This option has a high risk of unintended policy consequences, due to the short timeframe and also risks alienation of the local support for the whole initiative. It would be very unlikely to meet the September 2005 deadline.
It would set an undesirable precedent for an area to be managed outside the current legislative regime that applies everywhere else in New Zealand, and would raise the potential for national marine management objectives and processes to be significantly undermined.
This option is also inconsistent with the direction of Government policy, which is to promote and manage integration through non-statutory means such as the Marine Protected Areas Strategy and the New Zealand Biodiversity Strategy. In particular a comprehensive new piece of legislation would pre-empt an Oceans Policy.
Option C: Amendments to current legislation
Option C would involve using existing provisions under the Marine Reserves, Fisheries and Resource Management Acts to implement management measures. In addition, these statutes would need to be amended to allow implementation of the management measures that are not able to be implemented through current legislation.
Fiordland Marine Guardians
As described above, an advisory committee is proposed to be a significant element of the new management regime. 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. Providing it with statutory recognition and functions will mean that the management agencies should be able to give appropriate weight to the committee's advice. Placing the legislative provision for this committee within any one of the three major pieces of marine resource management legislation (Fisheries, Resource Management or Marine Reserves Act) could appear to give undue emphasis to that particular resource management sector. One possibility is to create the Fiordland Marine Guardians under the Environment Act. Establishing the committee this way would be consistent with the purpose of this Act. An advisory committee established under section 33 of the Environment Act would be able to provide advice to the Minister for the Environment on the application, operation, and effectiveness of the Fisheries, Resource Management or Marine Reserves Acts, among others. However, there is to date no precedent for establishing such a committee.
Other amendments proposed
As noted under Option A, other amendments would be needed to the following legislation to implement the specific management measures listed below, namely:
- amendments to the Marine Reserves Act (or
new Marine Reserves legislation) to:
- create eight new marine reserves
- disallow application for further new marine reserves in Fiordland for five years
- take into account the advice of the Fiordland Marine Guardians.
- amendments to the Resource Management Act
to:
- make changes to the Southland Coastal Plan
- take into account the advice of the Fiordland Marine Guardians.
- amendments to the Fisheries Act to take into account the advice of the Fiordland Marine Guardians.
The advantage to this option is that management measures can be specifically provided for by amendments to the relevant legislation. This option could allow changes to be made to meet the implementation timetable.
The disadvantage of this option is that the Fiordland area is left without any special status or recognition, and with no commonly agreed management boundary. Integrating elements, such as the need to recognise the role of the Fiordland Marine Guardians, would need to be inserted separately into each Act. Specific provisions for implementing local Fiordland-focused management measures might also detract from the national focus of these pieces of legislation. There is the risk that such ad hoc elements inserted into existing legislation may be, or become over time, inconsistent with the primary purposes of the legislation they have been inserted into.
Option D: Special legislation incorporating amendments to current legislation
As with Option C, Option D also involves amendments to the Marine Reserves, Fisheries and Resource Management Acts, and would require an amendment Bill. The difference between the two is that in Option C the Bill simply provides for amendments to the existing pieces of legislation. The Bill in Option D would create a piece of legislation for the Fiordland Area which would contain specific provisions to recognise the special nature of the area and resources and the means to integrate management.
This special piece of legislation would:
- recognise the special nature of the Fiordland marine environment
- create the Fiordland Marine Guardians
- require each of the Acts and management agencies to take into account the advice of the Fiordland Marine Guardians
- create the eight marine reserves and disallow further new marine reserves for five years
- create changes to the Southland Regional Coastal Plan
- define a boundary for the management measures in the Fiordland Area [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.]
- recognise the purpose of integrating management in this special area.
- could implement fisheries management measures (as discussed below).
An advantage of this option is that it would allow the special and unique nature of Fiordland to be given statutory recognition and so provide reason for any special or local management measures necessary to protect or manage these resources. It would also provide the means for the area to have greater status within the existing legislative resource management regimes of fisheries, resource management and marine conservation. It would create a greater sense of certainty within the resource management agencies [Including both central and local government agencies, as well as those with delegated or other statutory responsibilities, such as tangata tiaki.] of the need to provide for collective, consistent and integrated management. The advice of the Fiordland Marine Guardians would also accordingly gain greater recognition and effect.
Option D provides for fewer consequential amendments to existing legislation. The group also found that enactment of special legislation would provide the best means to accommodate many of the management measures that could not otherwise be implemented through the existing management regime, specifically:
- defining the area over which management measures would apply
- providing for the appointment and role of a Fiordland Marine Guardians.
Extending the legislative process to include fisheries management provisions
The proposed fisheries management measures can be implemented under existing Fisheries Regulations to meet the implementation timetable. However, as noted in Option C, the legislation needs to provide for a number of management measures that will need legislative provision to ensure they are both timely and complete. In order to create a complete package of management measures it may also be possible for the fisheries regulations to be implemented as a part of any new legislation. The legislation would simply include the regulations as a schedule in the same manner as the changes to the Regional Coastal Plan. They would continue to be Fisheries Act regulations. This would allow the public and the Select Committee to see the full package of management measures that require statutory change and consider them as whole. The advantage of this would be to provide Parliament with a Bill referencing all the significant resource management measures in one package. It is, however not necessary to do this, as the current process for setting fisheries regulations can operate in a timely manner to implement the measures.
Defining the area over which the management measures will apply
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 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 there is 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.
