Annex 2. Further detailed analysis of the four options for Implementing the Fiordland management measures

(Note this analysis supercedes Annex 3 of the Investigative Group report)

1. The Investigative Group analysed four broad options for implementing the management measures.

2. It is important to note that subsequent to the conclusion of the Investigative Group report, officials have undertaken more analysis of the options. In doing so, the range of options has not significantly changed, but the descriptions provided below have been updated to reflect the better understanding of these options. Hence, those below are slightly different to those in the Investigative Group's report.

Option A: Current legislation - using measures already available primarily under the Fisheries, Marine Reserves and Resource Management Acts

Option B: Comprehensive new legislation - 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: Minimal Fiordland-specific legislation - the least amount of statutory change necessary to implement the management measures in paragraph 46, but no provisions relating to ongoing management

Option D: More comprehensive Fiordland-specific legislation - Option C plus provisions for ongoing management (i.e. a purpose provision, a statutory advisory body with specified functions, and requirement on agencies to have regard to its advice).

3. In analysing the options, officials have been mindful of the Government's expectation of maintaining community support, implementing the package by September 2005 and retaining a flexible approach.

Analysis of Option A - Using current legislation.

4. Option A would use existing processes and legislative provisions only, with no new legislation.

5. Officials are agreed that most measures proposed in the Investigative Group report could be implemented without special legislation with a reasonable (although not absolute) degree of certainty, subject to the caveats below:

  1. A single Ministerial Advisory Committee could be established jointly under provisions in the Environment and Conservation Acts. Its terms of reference could provide that it also had a role to provide advice to the Ministers of Fisheries and Biosecurity, if requested, define the area over which it had jurisdiction to provide that advice and provide their involvement in the review of management measures after five years. Cabinet could invite Ministers, and direct agencies to have regard to that advice
  2. Eight new marine reserves could be processed by September 2005 provided the Southland Conservancy of DOC was provided with additional staffing resources, the Fiordland Guardians were supportive of the process, and the Minister of Fisheries was able to meet the deadline. Given the level of support from the community, and fishers in particular, the risk of changes to proposed reserve boundaries and conditions would probably be no higher under the existing statutory process than under a select committee process
  3. Fisheries measures would be implemented through regulations under the Fisheries Act
  4. The Government could publicly announce that it would not make any further applications for marine reserves in the area for a five year period. Applications from outside Government would be highly unlikely given that most, if not all, potential applicants would be represented on the Guardians and be committed to the gifts and gains process. In the rare event of an outsider making an application, that party would have difficulty meeting the pre-application consultation requirements (within the Marine Reserves Bill) within the 5 year period given the likely lack of co-operation of the key parties.

6. A key difficulty lies with implementing a variation to the Southland Proposed Regional Coastal Plan (or a plan change once the current plan is approved - likely early next year). There would be no guarantee that changes would be implemented by September 2005, particularly if appealed to the Environment Court. There is also the risk that the intent of the plan changes and integrity of the gifts and gains could be lost as a result of Council or Environment Court deliberations. Further, there is no certainty that the high level of additional funding required to implement the changes would be approved - particularly in the light of community concerns about the high cost and length of the current process (spanning 11 years).

7. The issue of the coastal plan changes aside, there are a number of arguments to support the use of existing legislation:

  1. It would avoid pre-empting the Oceans process and avoid continuing the ad hoc approach already taken in relation to the Hauraki Gulf and Sugar Loaf Islands Marine Park. The Fiordland Guardians set out to address a fundamental problem that current marine statutes work largely in isolation from each other. Because of this, communities have considerable difficulty taking an integrated approach to marine planning and ensuring they are confident of an appropriate regional balance between use, development and protection. A key driver for the Oceans process was the need to address this problem
  2. It would avoid creating a precedent- some other parts of the country are already signalling that they would like to investigate a Fiordland-type solution in their areas. In a country as small as New Zealand, it can be argued that multiple pieces of ad hoc legislation should be unnecessary, are inefficient and create inconsistencies from region to region.

8. On the other hand, there are also arguments to support special legislation in this case:

  1. The natural features and biodiversity in Fiordland are unique nationally and internationally and justify special treatment. Use of existing legislation would not accord the special legislative status to Fiordland that the community considers it needs
  2. In relation to concerns about a precedent effect, the Fiordland approach may not be as easily implemented elsewhere. Fiordland has the advantage of being remote from settlement and having limited demand for space for development. In the absence of significant change to primary statutes, other regions would have considerably greater difficulties achieving the level of consensus achieved in Fiordland
  3. Special legislation is not likely to impede achieving a nationally consistent approach through the Oceans process (if necessary, Oceans legislation could amend the Fiordland legislation) and in any event, implementation of Oceans policy is likely to be some years away
  4. It is important to capitalise on the momentum already generated in Fiordland. The Guardians made a considerable effort at no small cost over a number of years to bring their Strategy to fruition
  5. While no Government promises have been made of special legislation, an expectation has reasonably developed that this is the most appropriate course of action. Although, with one exception (coastal planning), existing legislation could be used, it is piecemeal, less straightforward and possibly less certain as to outcome
  6. Delivery would be dependent on a determined approach and the support of the Guardians (so that existing consultative procedures ran smoothly). This would rely on the Guardians having sufficient confidence that the measures would be pushed through in a timely and determined way. It might be difficult to generate such confidence given existing expectations for special legislation
  7. It would overcome difficulties with implementing a variation to the proposed Southland Regional Coastal Plan by September 2005.

9. On balance special legislation is recommended as the preferred approach. Other arguments for special legislation are discussed further below.

Analysis of Option B - Comprehensive new legislation

10. Option B would involve completely replacing, for the Fiordland marine area, existing legislative provisions within the major marine resource management legislation (Fisheries, Resource Management and Marine Reserves Acts) with new legislation specific to the implementation of the Fiordland management measures. This option was rejected by the Investigative Group as unsuitable. It has never been done before. (See page 14 of the Investigative Group report)

11. New comprehensive legislation would be complex and time consuming, and so it is highly probable that it could not be completed and passed in the time available. There is also a significant risk that the resulting legislation may not be entirely compatible with existing national legislative provisions, such as the quota management system under the Fisheries Act and the regional coastal planning provisions of the Resource Management Act. Completely replacing existing legislation within a defined geographic area would also set a significant, probably unworkable, precedent for other areas of the country.

12. Option B is therefore not recommended.

Options C and D - Fiordland-specific legislative change

13. Both options C and D propose new legislation to implement the various management measures. Neither option would involve the comprehensive replacement of existing legislation proposed in Option B. Any new legislation would comprise only that required to implement the specific management measures within the expected time-frame. Once implemented, all management functions currently provided for in the primary legislation (Fisheries, Resource Management, Marine Reserves and Biosecurity Acts) would continue to operate as normal.

14. In creating the marine reserves and imposing management conditions under the Fiordland-specific legislation no more is being proposed than can be done under the Marine Reserves Act through the existing Order-in-Council process, or is being proposed under the new Marine Reserves Bill.

15. Note also that the proposed fisheries management measures would be implemented through existing regulations.

16. The major difference between options C and D lies in the extent to which the management measures listed as requiring legislative change are implemented through special legislation.

Analysis of Option C - Minimal Fiordland-specific legislation

17. Option C is a minimal approach to creating new legislation. It would only create those management measures requiring legislative change to implement. This approach would by provisions within the legislation:

  1. Create the eight new marine reserves
  2. Provide for a moratorium on subsequent marine reserve applications to expire on the completion of a review or 7 years after commencement of the Act whichever is the sooner
  3. Create the necessary changes in the Southland Coastal Plan for mooring, anchoring and hull-fouling requirements for consented charter boat operators.

18. It would not create a statutory Fiordland Marine Guardians Committee. This committee would be done through other means. For example, a Ministerial advisory committee could be created under the Environment and/or Conservation Acts.

Limitations to Option C.

19. While providing more certainty that key management measures would be implemented, Option C still has some of the same limitations as Option A. Firstly, this minimum legislation would not include a purpose clause identifying the special values of Fiordland or provide the area with a separate and defined status. Secondly, the legislation would not impose a duty on decision-makers under the Resource Management Act, Fisheries Act or Marine Reserves Act to have regard to the advice of the Fiordland Marine Guardians. The need to have regard to such advice would instead result from Cabinet directive which is of lower status than special legislation and less permanent.

20. Finally, the Fiordland Marine Guardians committee would exist at the discretion of Ministers. The Committee (even though having single membership) would need to be established under several different statutes with multiple accountabilities. This could be confusing, messy and unlikely to be viewed as good process. All of these reasons undermine the community's very high expectation of having a secure and ongoing role for stakeholders and the community in the management of the Fiordland marine area.

21. Option C is not recommended.

Analysis of Option D - More comprehensive Fiordland-specific legislation

22. The primary difference between Options C and D is that, in addition to implementing the immediate management measures, Option D also provides for ongoing management, including: a purpose provision to identify the special values and to guide decision-makers; statutory advisory body with specified functions (including to provide advice on future management measures); and a requirement on management agencies to have regard to its advice.

23. The Investigative Group recommended Option D as it overcomes the limitations of Option C by:

  1. Recognising the special nature of Fiordland's marine environment
  2. Creating the Fiordland Marine Guardians committee and specifying its functions in statute including the need for its advice to be developed in an integrated way
  3. Defining a statutory boundary for all the management measures of the Fiordland marine area, and in the process creating a geographically recognisable management entity
  4. Imposing a statutory duty on decision makers under the Resource Management, Fisheries and Marine Reserves Acts to have regard to the advice of the Guardians
  5. Providing for a formal review of the package management measures after five years of operation and periodically thereafter.

24. Option D is recommended.

25. This option for implementation is supported by the Minister for the Environment's Investigative Group, which includes the three primary management agencies (MFish, DoC and Environment Southland), MfE, Ngai Tahu and the Guardians of Fiordland's Fisheries and Marine Environment.