The current legislative processes for establishing protected areas are complex, can be divisive and do not allow for planned and integrated decision-making. The proposed MPA Act will have an improved decision-making framework and will support collaboration and meaningful engagement with iwi/Māori, fishers, local communities, business and the wider public. Ministers will work together to make sure the best decisions are made to ensure the sustainable management of our marine environment.
Achieving an appropriate balance between protection and commercial, recreational and cultural opportunities requires a good understanding of our marine environment. In general, we need to improve our knowledge, so we can make good decisions about which areas of our oceans to protect.
The Government will continue gathering information about the marine environment in a systematic way, including through scientific research and engagement with iwi/Māori, local communities, business and the wider public. Initiatives are already under way that will support this process. For example, the Government has committed $31.3 million over five years to the Sustainable Seas National Science Challenge, which includes conducting research to develop a better understanding of the dynamics and sensitivities of our oceans and coastal systems.
Proposals to establish an MPA will only be advanced if they adequately describe the environment and benefits of protection and assess the economic impacts on current and future uses in a particular area. The MPA Act will include criteria for determining what information is needed and whether the information provided in a proposal is sufficient. Proposals will initially be considered by a lead Minister who will determine whether the proposal is consistent with the objectives of the MPA Act.
Which Minister takes the lead will depend on the category of MPA under consideration:
- marine reserves and species-specific sanctuaries – Minister of Conservation
- seabed reserves – Minister for the Environment
- recreational fishing parks – Minister for Primary Industries.
Multiple categories of protection may be required in some areas, to reflect different environmental and community needs. The process in situations such as this, including which Minister takes the lead, has yet to be determined.
Initiating a marine protected area proposal
Once a proposal has been accepted by a lead Minister, other Ministers whose responsibilities may be affected by the proposal will become involved in the process. This is because MPA proposals are likely to have effects on a variety of areas of interest to New Zealand. For example, ships might pass through a species-specific sanctuary, or a seabed reserve might be located in an area suitable for a new telecommunications cable.
The Conservation, Primary Industries, Environment and Māori Development Ministers will automatically be involved in every proposal. Other Ministers who may be involved include the Ministers of Energy and Resources, Transport, Communications, Foreign Affairs and Trade, and Defence.
The relevant Ministers will make a joint decision on which proposals should be advanced or not. Ministers will need to take into account the urgency of the issues and the resources available to support the development of MPA proposals.
The new process for initiating MPA proposals will allow Ministers to take a planned approach to designing a representative and adaptable network of MPAs in the territorial sea over time. Existing and future values and uses of the environment will be considered, to secure the sustainable use of our oceans through the protection of important ecosystems and biodiversity.
Once relevant Ministers agree to initiate an MPA proposal, consultation and further information gathering will be undertaken in one of two ways:
- Collaborative process: A collaborative process will be self-governing but will be given clear terms of reference by Ministers that will include assessment criteria against which the proposal must be evaluated. It will enable collaboration between all interested parties, including fishers, iwi/Māori, local communities, business and the wider public. This will ensure the interests of all parties are taken into account, including consideration of the impacts of a proposal on each party. The process will require public consultation as well as an independent economic assessment. Once consensus has been reached on a proposal, a recommendation will be made to relevant Ministers. If consensus cannot be reached, Ministers can choose to refer the proposal to a board of inquiry.
- Board of inquiry process: A board of inquiry will be appointed by Ministers and chaired by an Environment Court judge. Ministers will be required to ensure board members have skills relevant to the proposal, including fishing, marine science, conservation, tikanga and mātauranga Māori, and economic expertise. The board will be given clear terms of reference that will include assessment criteria against which the board must evaluate the proposal. A full public consultation process and an independent economic assessment will be required. At the conclusion of the process, the board will make a recommendation to relevant Ministers.
The relevant Ministers will jointly decide which process is more appropriate for a particular proposal. The decision on which process is best for a proposal will be made on a case-by-case basis. Examples of how the two processes may work are provided in appendix C.
There is intended to be a constructive tension between the alternative processes. If goodwill and a willingness to compromise exist between stakeholders, the collaborative process will be preferred. This process offers interested parties more direct input into any proposal. However, it relies on consensus to progress and could allow a single party to unreasonably block progress. The existence of the board of inquiry process enables a robust decision to be made on an MPA proposal without a consensus, if parties’ views are, or are likely to be, too divergent.
Benefits of the collaborative process
Collaborative processes are a proven approach to making decisions where multiple stakeholder views are involved. The collaborative approach will be most applicable for issues where there is strong local or regional interest. It will support meaningful engagement with iwi/Māori, local communities, business and the wider public. The main advantage of the collaborative process is that it allows the community to decide what it values and make trade-offs. It encourages stakeholders to share their ideas openly from the beginning of the process and discourages adversarial engagement. The process is designed to ensure that the interests of, and impacts on, all parties are considered. Successful collaboration results in outcomes that are driven and widely supported by the community.
Benefits of the board of inquiry process
The board of inquiry process suits proposals of national significance or direction, or those where a collaborative process would be unlikely to reach consensus. The benefits of the process are timely and consistent decisions made by independent board members with relevant expertise. Boards of inquiry will be able to take a planned approach to questions of both protection and use, and how proposals are able to contribute to the existing network of MPAs.
The collaborative and board of inquiry processes will recommend the appropriate level of protection and use to the relevant Ministers, as well as which activities will be prohibited or allowed in a proposed MPA. Criteria for this decision will be included in the terms of reference for both processes and may include:
- the costs and benefits of the proposal to the environment and the economy
- the proposal’s contribution to a representative and adaptable network of MPAs
- whether the area is currently protected in any way
- the effect on existing and future uses and values of the area
- the effect on Treaty of Waitangi rights and obligations
- the alignment with international best practice and commitments.
Once the relevant Ministers receive a recommendation, they may choose to accept or reject it, or refer it back for reconsideration or amendment. Ministers will not be able to change recommendations. The proposed MPA Act will specify how and when decisions may be challenged.
The new MPA Act will ensure a planned approach is taken to the creation of a representative and adaptable network of MPAs in the territorial sea over time. It will set out clear procedures and decision points, giving applicants and other participants certainty about the process in which they are engaging and the outcomes they may expect.
Supporting marine planning exercises
Several existing tools are available to support boards of inquiry and collaborative processes. For example, Seasketch is currently being used for a number of marine planning exercises in New Zealand and around the world (see www.seasketch.org). Tools like this make it possible to map information and identify gaps and overlapping interests in the marine environment and will play an important role in progressing marine protection.
In some circumstances, achieving a sound balance between protection and sustainable use of marine resources may best be achieved by incorporating marine management tools beyond the four categories proposed for the new MPA Act into a suite of protection and management measures in an area. For example, a proposal may include an area where objectives are best met using a customary tool (eg, taiapure or mātaitai reserves), or a recreational fishing tool under the Fisheries Act.
The new MPA Act will enable the implementation of these tools alongside the proposed MPA categories in a timely and coordinated way, so a collaborative process can develop a package of marine protection tools including areas set aside for other uses, for example, customary.
People wishing to undertake activities allowed within an MPA may still have to go through a consenting process under the Resource Management Act 1991 (RMA). However, decisions made on all uses of the marine environment will be closely aligned, to avoid duplication and improve integration of the marine management system.
The new MPA Act will provide for MPAs in the territorial sea to be recognised in regional coastal plans. Decision-makers under the RMA will be required to take MPAs into account when making decisions on proposed activities, including whether:
- an MPA is in place in the consent application area
- the proposed activity will affect an adjacent MPA
- a species or ecosystem in the consent application area is otherwise protected as part of the representative network of MPAs.
Over time, RMA decision-makers will be able to consider whether the MPA network provides sufficient protection for elements of the marine environment affected by the application before them. For example, activities that will affect a particular species in an application area could be allowed if the overall integrity of the species was maintained across its range.
The proposed MPA Act will allow for the periodic review of new MPAs. This will help the MPA network to remain representative and adaptable, and to meet its objectives. A review may be a condition of the establishment of an MPA or may be triggered by particular events, such as the emergence of a new threat or new technology, or the discovery of a valuable new resource. Whether an MPA would be subject to a future review would be decided at the time the MPA was established, but it would not apply to any existing MPAs except where already required.
Reviews will be undertaken either by a board of inquiry or through a collaborative process. The outcome of a review should be consistent with the MPA’s original purpose. In exceptional circumstances, MPAs could be revoked if a review identified that this would deliver better outcomes for our oceans.
The timing of reviews will be flexible and will take into account the purpose for which the MPA was established. For example, if an MPA was established to protect a particularly long-lived slow-growing species, then the timing of its review should reflect the time required for that species to demonstrate a response to any management regime put in place. MPAs could also be subject to a generational review, to recognise the Māori view that decisions made by contemporary generations should not tie the hands of future generations.
Any review provisions already in place for existing MPAs will be retained in line with their current timetable or statutory requirements.
- What do you think would be the best process for initiating MPA proposals in areas where multiple categories of protection may be needed?
- Are the proposed MPA decision-making processes (collaborative process and board of inquiry process) the best way of achieving our objectives (2, 3, 4 and 5)? Why/why not?
- What are the advantages and disadvantages of having two different decision-making processes? Is one of the processes preferable to the other or are there alternative decision-making processes that would better achieve the desired outcomes (objectives 2, 4 and 5)?
- Do you agree with the proposed review arrangements? Why/why not? Are there any additional approaches that should be considered for reviewing MPAs?