Part 2: Limitations of the marine protection planning process

Using different processes to protect marine environments.

2.1
Many of New Zealand’s coastal regions are under-represented or have no marine protected areas. In our view, aspects of the MPA policy’s implementation guidelines make it difficult to achieve New Zealand’s marine biodiversity objectives. In particular, the South-East Forum faced some unintended consequences from following the implementation guidelines, which undermined its overall effectiveness.

2.2
In this Part, we discuss:

Previous attempts at establishing Marine Protection Planning Forums

2.3
Since 2005, there have been three attempts at marine protection planning using the MPA policy. These have been on the west coast of the South Island, the subantarctic islands, and the south-east coast of the South Island.

2.4
The West Coast Marine Protection Forum was established in 2005 in response to considerable interest from local stakeholder groups. This was before the MPA policy was developed. It was New Zealand’s first Marine Protection Planning Forum. In 2011, based on recommendations from the Forum, the Minister of Conservation and the then Minister of Fisheries and Aquaculture proposed a package of marine protected areas and marine reserves. Of these proposals, the Kahurangi Marine Reserve, the Punakaiki Marine Reserve, the Waiau Glacier Coast Marine Reserve, the Tauparikaka Marine Reserve, and the Hautai Marine Reserve were established. These marine reserves were established, along with other fisheries management tools, in September 2014.

2.5
The Subantarctic Marine Protection Forum was established in 2008. This Forum consisted of representatives of different interests and considered a range of information about the subantarctic islands, including Treaty of Waitangi obligations. Its recommendations were presented for public consultation in 2009. In 2010, after consultation, the Forum made two sets of recommendations. The Minister of Conservation and the Minister of Fisheries and Aquaculture agreed in December 2010 on a preferred form of marine protection for each of the island groups.

2.6
On 23 March 2011, the Cabinet Domestic Policy Committee agreed to progress the Subantarctic Islands Marine Reserves Bill, which would create three new marine reserves: one over the entire territorial sea surrounding Antipodes Island and two around the Bounty Islands and Campbell Island/Motuere Ihupuku. The latter two marine reserves would cover 58% of Bounty Islands’ and 39% of Campbell Island/Motuere Ihupuku’s territorial seas. The Subantarctic Islands Marine Reserves Act 2014 came into force in March 2014.

2.7
The South-East Forum made two proposals – Network 1 and Network 2. The Ministers chose to progress Network 1 (see the Appendix).

2.8
Although Marine Protection Planning Forums have been established and have resulted in areas of marine protection, the proportion of the marine environment that is protected is still limited. The total area that is protected in marine reserves is 615 square kilometres or 0.4% of New Zealand’s territorial and internal waters. The total area that is protected with both Type 1 and Type 2 marine protected areas is 2792 square kilometres or 1.9% of New Zealand’s territorial and internal waters. Large parts of marine protected areas are located in areas with sparse or no population.4

2.9
We note that, with the exception of Dunedin, Marine Protection Planning Forums have not been attempted in populous areas. We were also told that MPI and DOC are less likely to use this approach in the North Island because of the complexity of existing and perceived rights and uses of the marine environment.

Role of policy in meeting marine biodiversity protection objectives

2.10
MPI and DOC are jointly responsible for implementing the MPA policy. The MPA policy aims to protect “representative examples of the full range of marine habitats and ecosystems, and also outstanding, rare, distinctive or internationally or nationally important marine habitats and ecosystems.”5 The MPA policy includes “implementing principles” that are designed to help implement the MPA policy. The implementing principles are divided into two categories: “network design principles” and “planning principles”.

2.11
Network design principles are intended to aid the process of designing a marine protected area network. The six network design principles provide guidance on matters such as the range of habitats and ecosystems that must be included in the network, guidance on what makes a viable network, and monitoring requirements.

2.12
Planning principles are intended to guide the planning and management of marine protected areas and cover matters such as transparency, providing advice that is based on the best available information, and processes being conducted in a timely and inclusive way. There are 10 planning principles. Planning Principle Three specifically identifies the importance of adequately recognising the special relationship between the Crown and Māori in the planning process. Planning Principle Five states that adverse effects on those who already use the marine environment should be minimised. Planning Principle One states that every marine protected area should be designated and representative of one or more habitats or ecosystems.

The implementation guidelines

2.13
The MPA policy is supported by the Marine protected areas: Classification, protection standard and implementation guidelines (the implementation guidelines). This document provides a framework for planning and establishing a network of marine protected areas.

2.14
In line with the MPA policy’s network design and planning principles, the implementation guidelines require planning processes to be inclusive and transparent. The implementation guidelines also state that marine planning processes are to be based on the best available information. The implementation guidelines set the expectations for planning marine protected areas and define the protection standard that planning must achieve.

2.15
The MPA policy and the implementation guidelines introduced Marine Protection Planning Forums, which are designed to create proposals that recommend a network of marine protection tools. Forums are expected to be representative and collaborative in order to try to reach a consensus.

2.16
However, the implementation guidelines state that, if a consensus cannot be reached, the Marine Protection Planning Forum should provide a range of recommendations, making the advantages and disadvantages of each recommendation clear. The Forum should also communicate which recommendations are favoured by which stakeholders or parts of the community.

2.17
The protection standard is the standard that must be met by all marine protected areas established through marine planning processes. Marine protection “tools” that meet this protection standard are Type 1 and Type 2 marine protected areas (see Part 1). The MPA policy states that other marine protection tools can be included in the network if they meet the same protection standard as these.

2.18
The implementation guidelines emphasise protecting biodiversity. They require that a marine reserve be established to protect at least one sample of each habitat and ecosystem type in the network. They also state that Marine Protection Planning Forums should not be diverted by the Resource Management Act or by aquaculture or fisheries management issues.

2.19
Under the implementation guidelines, there are clear expectations of Marine Protection Planning Forums. Marine Protection Planning Forums can have a maximum of 14 stakeholders, including the chairperson, but proxy members are not permitted. After they have been established, Marine Protection Planning Forums are expected to produce a set of recommendations for Ministers within
18 months.

2.20
These expectations must be applied in all 14 coastal biogeographical regions identified in the implementation guidelines. However, this approach to planning does not enable the form or function of Marine Protection Planning Forums to be modified to meet the different needs of New Zealand’s unique regions. This amounts to a “one size fits all” approach, which, in our view, is unlikely to succeed in every situation.

2.21
Although some marine protected areas have been created since 2005, DOC’s 2017/18 annual report stated that many of New Zealand’s coastal regions are under-represented or have no marine protected areas. In our view, the implementation guidelines alone are inadequate to support New Zealand’s marine biodiversity objectives. An MPA implementation plan needs to be fully embraced by the agencies that own the MPA policy and the implementation guidelines.

Unintended consequences from following the implementation guidelines

2.22
The MPA policy states that the process “will be underpinned by a commitment to minimise the impact of new protected areas on existing users of the marine environment and Treaty settlement obligations.”6 Marine Protected Area Planning Principle Five also notes that “MPAs are more likely to be established in a timely and efficient manner where appropriate recognition is given to the rights and responsibilities of users of the marine environment.”7

2.23
Some members of the South-East Forum did not feel that the process allowed them to adequately minimise the adverse effects on their stakeholders. In some instances, members proposed marine management tools that did not meet the protection standard in the implementation guidelines (see paragraph 2.17) but would have addressed their concerns about the adverse effects on existing users of the marine environment.

2.24
For example, some members advocated for recommending changes to land-based activities under the Resource Management Act. These members wanted to recommend measures that would improve the quality of the rivers that flow out to sea to protect fish that spawn in estuaries.

2.25
However, because the implementation guidelines focus on marine biodiversity protection, these proposals were out of scope and could not be included in the South-East Forum’s network recommendations.

2.26
As a result, some of the South-East Forum members did not feel that recommendations to the Ministers adequately addressed the concerns of the people they represented. This undermined their participation and confidence in the South-East Forum and contributed to members forming into factions according to their different points of view. These different factions appeared to operate in an adversarial way at times.

2.27
The view that adverse effects of the proposed marine protected areas on members of the community or stakeholders could not be adequately minimised had some unintended consequences, including:

  • undermining efficiency;
  • undermining collaboration; and
  • the process resulting in split recommendations.

2.28
In our view, these unintended consequences go to the heart of the complexity involved in recommending marine protection, and demonstrate the importance of running a process that can help agencies effectively navigate that complexity.

2.29
Collectively, these unintended consequences undermined the effectiveness of the South-East Forum.

Undermining efficiency

2.30
The South-East Forum meetings were at times focused on members debating the purpose of the South-East Forum – in particular, whether the South-East Forum should limit its recommendations for new marine protected areas (which is in line with the MPA policy scope for all Marine Protection Planning Forums) or consider broader marine management issues. It became clear from reviewing minutes and interviewing participants and support staff that these debates contributed to tension, frustration, and slowed progress.

2.31
Some participants were frustrated by the South-East Forum’s inability to recommend a broader range of measures that could, in their view, adequately minimise the adverse effects of new marine protected areas on the stakeholders they represented. Other members were frustrated by the South-East Forum being, in their view, distracted by matters that, if recommended, would undermine its ability to achieve the policy objectives it was established to meet. Debating these matters diverted time and resources away from the South-East Forum’s central planning objective.

2.32
Ultimately, and in apparent recognition of this issue, the South-East Forum’s recommendations to the Minister of Conservation and the Minister of Fisheries stated that “land-based impacts are a significant issue for this bioregion, particularly for estuaries, embayments and kelp”.8 It recommends that agencies with jurisdiction over activities that could affect the coastal environment to protect and safeguard the coastal habitats and ecosystems. However, this is not part of the network recommendations.

Undermining collaboration

2.33
The model used in the South-East Forum to support collaboration, and as a way to minimise adverse effects on users of the marine environment, was the “gifts and gains” model. The gifts and gains model, which was also used by Te Korowai, is a process that supports compromise. The gifts were what people were willing to part with and the gains were what they got out of the compromise. This could, for example, be the agreement of a marine reserve or the inclusion of a marine mammal sanctuary.

2.34
In practice, the South-East Forum found limited success with the gifts and gains model. Although the gifts and gains model could lead to concessions on the size and number of proposed marine protected areas, because extractive activities (such as fishing) are generally excluded from marine protected areas, we were told that the chances of reaching consensus or compromise were reduced. The reaction of some members was to try to limit perceived adverse effects on the users they represented in two ways: by proposing fewer marine protected areas compared with what other members of the South-East Forum wanted and by advocating for measures that provided a lesser protection standard than required by the implementation guidelines. In our view, the gifts and gains model had limited success in the South-East Forum.

2.35
Despite the South-East Forum’s clear terms of reference and internal protocol, tensions, and frustrations experienced by some members limited the constructive engagement envisaged by the Marine Protected Area Planning Principle Four. This states:

MPA establishment will be undertaken in a transparent, participatory, and timely manner… Support for MPAs is likely to be increased where affected parties are adequately informed and have confidence in the integrity of the decision-making process. MPA implementation will be undertaken in a manner that constructively engages tangata whenua, regional councils, other government agencies and particular interests whose use of marine areas will be affected by MPAs, in addition to groups with an interest in marine biodiversity. These processes will be undertaken in a transparent manner that informs and allows for participation and input from the public.9

2.36
Although the implementation guidelines allow for different recommendations to be presented, the factions that had formed within the South-East Forum at times worked in an adversarial manner. This happened particularly after public submissions were received. A strong theme emerging from our interviews was that, from that point on in the process, the members of the South-East Forum tended to operate as two distinct factions.

The process resulted in split recommendations

2.37
Two networks of marine protected areas were recommended for the Ministers to consider. Although the implementation guidelines allow for different recommendations to be presented, and the South-East Forum signed off the recommendation report, supporters of Network 2 withdrew their support for the Forum’s recommendations and for the process that had produced them just before the report was to be provided to Ministers.

2.38
Both networks were published and formally recommended to the Minister of Conservation and the Minister of Fisheries in February 2018. In May 2019, the Government announced it would be progressing the recommendations from Network 1.

Potential changes to how marine protection is established

2.39
In 2016, the Ministry for the Environment published a consultation document, A New Marine Protected Areas Act. Although it focused on New Zealand’s approach to marine biodiversity protection generally, the document noted the Government’s view that the current approach to marine protection is not the most effective for managing New Zealand’s marine environment. It described the current process as complex and inflexible, noting that consultation and decision-making processes are overly long, costly, and cumbersome.

2.40
The consultation document summarised what the Government viewed as the shortcomings of the current approach to marine protection, including that:

  • decisions on marine protection are made with little co-ordination;
  • consultation processes in statute do not provide for different tools to be considered through a collaborative process and can lack credibility;
  • consideration of the effects on existing and future uses and values is inadequate, potentially limiting the sustainable growth of the marine economy; and
  • provision for iwi/Māori involvement in the development and management of marine protected areas is inconsistent and often inadequate.

2.41
Responsibilities for reform of the MPA policy have been transferred from the Ministry for the Environment to DOC and MPI.

2.42
In our view, this provides DOC and MPI with an opportunity to consider how any reform could support greater collaboration between parties that would lead to more timely appropriate and sustainable protection for New Zealand’s unique marine environment.

Recommendation 1
We recommend that the Department of Conservation and the Ministry for Primary Industries consider how any reform to marine biodiversity protection legislation, policy, or planning could support greater collaboration between parties, and ultimately provide more timely, appropriate, and sustainable protection for New Zealand’s unique marine biodiversity.

4: This figure excludes marine reserves around the Chatham, Snares, Three Kings, and Kermadec Islands, and the subantarctic islands.

5 Department of Conservation and Ministry of Fisheries (2011), Coastal marine habitats and marine protected areas in the New Zealand Territorial Sea: a broad scale gap analysis, Wellington, page 6.

6: Department of Conservation and Ministry of Fisheries (2005), Marine Protected Areas: Policy and Implementation Plan, Wellington, page 3.

7: Department of Conservation and Ministry of Fisheries (2005), Marine Protected Areas: Policy and Implementation Plan, Wellington, page 18.

8: South-East Marine Protection Forum (2018), Recommendations to the Minister of Conservation and the Minister of Fisheries: Recommendations towards implementation of the Marine Protected Areas Policy on the South Island’s south-east coast of New Zealand, Wellington, page 236.

9: Department of Conservation and Ministry of Fisheries (2005), Marine Protected Areas: Policy and Implementation Plan, Wellington, page 18.