The government is undertaking a comprehensive reform of conservation legislation. Currently, it is consulting on a set of targeted amendments to legislation regarding conservation management planning, and the concessions system.
“Our current conservation laws are a web of 24 acts that are complicated and inconsistent. Most of them are decades old and do not account for modern pressures like climate change. They don't reflect our evolving understanding of the principles of Te Tiriti o Waitangi”. Modernising conservation legislation
Public feedback is being sought on proposed reforms. Submissions close on 30 June 2022. (See below for details).
The three specific areas under review are listed as:
- Conservation management planning – improve the ability to develop and review conservation management strategies, conservation management plans and national park management plans.
- Permissions system – improve the ability to process, manage and allocate concession opportunities on public conservation lands and waters.
- Miscellaneous – remove or clarify minor and technical miscellaneous legislative anomalies.
Proposed changes to conservation management planning
In 2020/21, the Department of Conservation (DOC) initiated an internal systems level review into how the management planning system is functioning. This review identified three core challenges:
- There is a significant backlog of statutory planning documents that are overdue for review or development. The pipeline of work is increasing as documents reach the end of the statutory 10-year timeframe and become due for review and as new documents are added because of Treaty settlements. This backlog is not meeting statutory requirements and undermines confidence in DOC.
- The system is not adequately meeting DOC’s responsibilities to give effect to the principles of the Treaty of Waitangi under section 4 of the Conservation Act 1987 or delivering outcomes for tangata whenua.
- Statutory planning documents are not being optimally implemented within DOC. While they are used to guide statutory decisions, they are no longer frequently used to guide DOC’s operational work.
DOC is pursuing the following long-term work programmes to address these problems:
- Driving improved performance in the management planning system: Work is underway to implement the shifts identified in the 2020/21 review of DOC’s management planning system as being required to drive improved performance in DOC’s work to deliver its existing statutory responsibilities for management planning.
- Partial reviews of the Conservation General Policy and General Policy for National Parks: This work will lead improvements to how DOC gives effect to the principles of the Treaty of Waitangi across its work. This will include improvements within the management planning system.
- Long-term plans for reforming conservation legislation: Fundamental questions about the purpose and role of planning documents need to be considered as part of reforming conservation legislation. This will include discussions about governance and decision making, as well as exploring opportunities for improving Treaty partnership. Decisions on the timing, approach and scope of full reform are yet to be made.
One of the key areas being targeted is the requirement for management strategies and planning documents to undergo a full review every 10 years. An option proposed by DOC is to remove this 10-year obligation, and to remove any barriers to partial updates. Instead, it is proposed the 10-year requirement would be replaced with a statutory check-in process every 10 years that allows DOC (after engaging with tangata whenua, the NZ Conservation Authority and the relevant conservation board(s)) to:
- invite the NZCA or conservation board(s) and/or another decision-maker as defined in Treaty settlement legislation (as relevant) to reapprove the strategy or plan in full; or
- initiate a partial review of the strategy or plan; or
- initiate a full review of the strategy or plan.
Another recommendation is to introduce a new streamlined process for partially reviewing planning documents, (such as Conservation Management Strategies, Conservation Management Plans, and National Park Management Plans), where the changes are described as ‘limited public interest’. The document goes on to say that circumstances where changes would be considered of limited interest would be where:
- the proposed change relates to a confined issue; and
- consultation with relevant Conservation Board(s), relevant Post Settlement Governance Entities, and tangata whenua finds that a streamlined process is appropriate; and
- DOC is able to identify all persons and groups directly affected by the proposed change.
The streamlined process would remove the steps requiring public notification of a draft planning document and the subsequent public submissions and hearings on a notified draft. Instead, DOC would be required to engage with directly affected persons and groups during the drafting of the proposed change and then provide the proposal to the Conservation Board(s) for consideration. The existing revision and decision-making requirements would remain.
A further recommendation is to amend the Conservation Act 1987 and National Parks Act 1980 “to modernise the requirements for public notification and seeking public input on a notified draft planning document, including removing the requirement to hold hearings”. A recommended option is to remove the requirement to publicly notify the intent to prepare or review a National Park Management Plan. But this would not apply to tangata whenua – who DOC would continue to engage with throughout the process.
Under this recommendation, it appears the general public would not have the ability to have a say before the changes are drafted.
Another reason given for the proposed changes to the management planning is that the current conservation management system is not adequately meeting DOC’s responsibilities to give effect to the principles of the Treaty of Waitangi under section 4 of the Conservation Act 1987 or delivering outcomes for tangata whenua.
For more information and details about these proposals and others see DOC discussion document: Conservation management and processes
The proposed changes to the concession system
The changes to the concession system focus on competitive tendering and the pre-approval of activities.
DOC may ‘return’ applications to run a tender process
One proposed option would allow DOC to return a concession application if multiple parties have informally expressed an interest in the opportunity, there is likely to be wider interest in the opportunity, or the applicant is not the current concession holder and DOC wishes to provide the incumbent with an opportunity to apply as well. The ability to return an application could be effective in circumstances where DOC has received an application and wishes to consider other potential uses of the opportunity and assess them against the applicant’s proposal.
N.B. The discussion document states that “The use of the word ‘return’ instead of ‘decline’ is deliberate, as the application would not be considered and no decision on the acceptability of the activity would be made”.
This recommendation would allow DOC “to carry out its section 4* responsibilities when regulating access to economic opportunities. It would create more opportunities for tangata whenua to express an interest in, and apply for, concession opportunities, which would provide DOC with more effective mechanisms to consider active protection of tangata whenua interests when allocating concessions”
“This option would provide tangata whenua with greater access to economic opportunities by addressing the ‘first-in, first-served’ process, which favours incumbents and existing operators.”
N.B. In 2018, the Supreme Court’s judgement in Ngāi Tai ki Tāmaki Tribal Trust v Minister of Conservation [2018] NZSC 122 heightened public interest in DOC’s concession allocation processes, particularly in terms of considering a degree of preference for tangata whenua when allocating concessions. At present, DOC considers its section 4 responsibilities on a case-by-case basis. You can read the then Minister of Conservation Eugenie Sage's response to the Court's finding HERE. It appears the changes to the concession system are informed by Sage's response.
Proposed pre-approved concessions
Currently DOC cannot pre-approve a concession for an activity, even though it could assess the activity in advance. The decision to approve or decline an activity must be in response to an application that is then actively considered by a decision-maker. In practice, this means that DOC cannot provide a pre-approved concession.
One recommendation is to enable the pre-approval of activities already defined and assessed by DOC so that users can obtain the necessary authorisation instantly. The range of concessions that would be available for pre-approval would be at DOC’s discretion, following appropriate consultation with iwi, hapū and whānau. DOC would therefore retain the ability to remove a concession opportunity from the pre-approved list if required. An activity could be removed quickly if undesirable impacts on conservation values were observed, or concerns were raised by tangata whenua.
“For some areas, preapprovals may not be compatible with DOC’s obligations under some Treaty settlement obligations or te Takutai Moana legislation. Flexibility ensures that DOC can carry out its section 4 responsibilities by removing activities or locations from the list of available concessions if concerns are raised by tangata whenua.”
*Section 4 of the Conservation Act requires DOC to give effect to the principles of the Treaty of Waitangi when implementing any of its legislative responsibilities. This includes DOC’s statutory role in processing and managing concessions. All principles of the Treaty apply, but the principles of partnership, informed decision making and active protection are most frequently relevant to concessions management: p.46 ‘Conservation management and processes’ discussion document.
For further information see DOC discussion document: Conservation management and processes
Have your say
You can have your say on the proposals in this discussion document by completing and submitting the online submission form at www.doc.govt.nz/cmap-2022-consultation; or by preparing your own written response, and send via:
- email [email protected] Subject line: CMAP Process; or
- sending a letter to: Policy Unit, CMAP Consultation, Department of Conservation, PO Box 10420, Wellington 6143.
Ensure your submission includes:
- your name (and title)
- the name of your organisation (if you are submitting on behalf of an organisation)
- your contact details (email preferred).
All submissions must be received by DOC by 30 June 2022.
Submission info: https://www.doc.govt.nz/cmap-2022-consultation
Further information
- DOC: Help us improve conservation management planning and concessions legislation
- Minister of Conservation, Kiritapu Allan: Proposals aimed at user-friendly, up-to-date conservation processes
- DOC: Presentation regarding the proposed Conservation Management and Processes Bill
- Modernising conservation legislation
- Click HERE for a link to the roadmap to conservation law reform.