Submission on Modernising conservation land management and exploring charging for access to some public conservation land

The Legislative Basis for the New Zealand Conservation Authority’s submission

1. The New Zealand Conservation Authority/Te Pou Atawhai Taiao o Aotearoa (Authority, NZCA) is established under the Conservation Act 1987, with members appointed by the Minister of Conservation. It is an independent statutory body with a range of functions but primarily acts as an independent conservation advisor to the Minister and the Director-General of Conservation.
2. The Authority has a role as an objective advocate on matters of national significance and interest in the conservation arena and to provide high quality independent advice to the Department of Conservation (Department, DOC) on its strategic direction and performance.
3. The Authority has a range of powers and functions, under the Conservation Act, National Parks Act, as well as under other conservation related legislation. Under the Conservation Act (section 6C(2)(c) refers) the Authority has the power to “advocate the interests of the Authority at any public forum or in any statutory planning process.”

NZCA Submission

Modernising conservation land management

Introduction

4. The Authority supports changes that make the system more efficient and effective without adversely impacting on conservation values. The Authority has for many years now sought to understand why conservation management planning is so out of date, and what can be done to improve the system. It commends the Minister for grappling with that issue but considers that many of the issues are operational ones, and could be addressed by operational changes (we provide some further thoughts on this below).
5. The discussion document seems to be underpinned by the view that it is necessary to “free up” more conservation land for uses that generate a financial return. The Authority does not consider that the case has been made for treating conservation land primarily as a revenue generating asset. Even more importantly, the case has not been made for how this can happen in a way that protects conservation values and honours Te Tiriti. In particular, the Authority does not agree that there should be more flexibility to dispose of conservation land (other than stewardship areas with low or no conservation value).
6. The discussion document does not appear to recognise the twin crises facing New Zealand’s environment – biodiversity loss and climate change and has very limited analysis of how the changes proposed will help conservation values in the face of those threats. While the document is focused on system changes to improve efficiencies, the Authority considers there has been a missed opportunity to hone in on changes that could make a real difference for conservation.
7. We need a system that is able to respond to changes that are occurring in the environment in time frames shorter than the current planning cycles (even without the excessive delays now happening) – for instance, where there are climate related impacts that require changing priorities within regions, and, at a national scale, responding to heat waves/cyclone damage etc. and ensuring conservation values as well as recreation, visitor experiences are reflecting realities of the changing conditions. We need a responsive system but one that is also stable and provides clarity about decision making.
8. The Authority is also surprised and disappointed that the Department has not made better use of recommendations from the Options Development Group as to how the conservation planning system could improve.

Section 5 Conservation planning

Authority’s feedback on the proposals in the discussion document

9. In relation to the proposal for a single national conservation policy statement (“NCPS”):
   • a. The Authority supports in principle an overarching statement of conservation policy. A single document that describes how the system “fits together” and provides internally consistent policy direction is likely to be a positive step.
   • b. The Authority’s qualifications to its position of in principle support are:
     • Politicisation of conservation management should be avoided. Safeguards are required, including a clear statement in the Conservation Act 1987 (the Act) and National Parks Act 1980 (NPA) as to what the NCPS must achieve.
     • The Act and NPA have different purposes, reflecting the different approach to conservation areas and national parks. It is essential that an NCPS respects the differing purposes for which these land types are held.
   • c. The Authority strongly disagrees with the discussion document’s statement that having a conservation general policy (CGP) approved by the Minister and a national parks general policy (GPNP) approved by the Authority has resulted in inconsistency (5.3.3). No examples are given to support this, and we note that the current policies were developed in parallel, so it is hard to see where ‘inconsistencies’ exist. The Authority also disagrees that having NZCA or relevant conservation boards approve changes to management plans and strategies “fetters ministerial decision making”. The fact that an entity other than the Minister has been given the decision-making power by Parliament is not a fetter.
   • d. The scope (content) of an NCPS (5.1.1) is proposed to be very narrow – relating almost exclusively to decisions about concessions (as stated explicitly in para 2 of 5.1.3). The CGP and GPNP currently do much more than this, for example they contain policy on acquiring and disposing of land, policy on decisions about access arrangements under the Crown Minerals Act 1991, they guide how the Department operates within the conservation estate, and they guide the Department’s advocacy for natural and historic resources off the conservation estate (that being an important part of the Department’s functions under s 6 of the Act). The proposed narrowing of scope is not supported, not least because no explanation is given for this significant change. An NCPS should cover all of NPA, and legislation referred to in Schedule 1 of the Act. It follows that the Authority does not see the narrow-proposed scope of statutory planning documents as making it “more appropriate for the Minister to be the decision-maker” (5.3.3).
   • e. Aspects of the proposed process for preparing an NCPS are not supported:
     • The Authority considers mana whenua should have a more direct and meaningful role – that they should “hold the pen” alongside the Department, rather than being consultees.
     • The role of conservation boards and the Authority is proposed to reduce significantly. The Authority opposes this change and is particularly disappointed that there was no discussion with it before these proposals were included in a public discussion document. The Authority is particularly concerned that the Minister of Conservation would become the decision-maker for an NCPS, all area plans, and then all concessions authorised under those plans. There have been nine (9) Ministers of Conservation (including Associates and Acting) in the past 11 years, each with very different priorities. In contrast, Authority members are appointed for 3-year terms and most are re-appointed for more than one term, which brings stability and institutional knowledge to the system. The Authority does not hold up the process or create inconsistencies. The Authority’s partial independence (noting members are appointed by the Minister) assists in de-politicising conservation planning documents. Conservation boards provide an important community voice.
     • The timing and nature of engagement “will vary” – the Authority does not support this and considers that the requirements and timing of public engagement should be clearly specified in the relevant legislation (excluding minor or technical amendments where consultation either may not be required or may be targeted/shortened).
     10. With respect to the area plan proposal:
         • The concept of a single plan for an area, sitting underneath the NCPS, is supported in principle.
         • As with the NCPS, the Authority does not support the proposed scope (content) of area plans, the reduced role for the Authority and Boards, the treatment of making entirely by the Minister of Conservation.
         • The Authority does not have a good understanding of the spatial area that an area plan will cover, or how that will be determined.

     The Authority’s perspective on how conservation planning could be improved

     11. From its extensive engagement with the Department on the issue of conservation management planning (since October 2015), the Authority has formed the clear opinion that:
         • it is largely operational and resourcing issues that are holding the system back; and
         • perceived or actual risk of procedural challenges can send a CMS review back to the starting blocks.
     12. The Act requires that CMSs are reviewed every ten years, and we note that 13 of the 17 CMSs are due/overdue for review. However, the Department will only attempt to progress a small number of CMSs at a time, so regions with very out of date CMSs are not even able to start the process. If this is purely a funding issue, then the system will not improve unless additional funding is provided.
     13. The Authority also perceives that on several occasions a CMS review has been initiated, then there is a legal threat from a stakeholder, then the Department either embarks on an extensive new engagement process or withdraws the CMS until it has resolved the threatened legal issue (sometimes over several years), then starts again – for example, with the Bay of Plenty CMS. It is not clear to the Authority why procedural challenges are able to have such a significant impact on this process, particularly when parties are able to feed into the CMS through the public consultation and hearing process. It may be possible to improve the process of CMS preparation so that all aspects of parties’ concerns about a CMS are dealt with by a hearing panel as part of its consideration of the CMS (with an allowance for limited appeals on questions of law only). This is likely to require legislative changes.

     Section 6 concession process

     14. The Authority does not have any significant concerns with the changes proposed to the concession process but considers that some changes will make little difference to how effectively concessions are processed.
     15. The two key issues, in the Authority’s view, are:
         • Steps in the process for which no statutory timeframe is given.
         • De-regionalisation of concessions processing staff.
     16. Despite the Act mandating specific timeframes for many steps in the concession application process, these are not necessarily adhered to, and some aspects of the process do not have a statutory timeframe. Specifying an overall timeframe within which concessions must be processed would require the Department to adequately resource the process in order to achieve those timeframes. (This would avoid the need for legislation like the Fast Track Approvals Act 2024 which not only contains extremely tight timeframes but also excludes public input and overrides conservation considerations.) Under the RMA, compliance with processing timeframes is incentivised through a requirement to partially refund processing fees where timeframes are not met. The Authority can see no reason why a similar approach could not work for concessions (and there may be other incentives that would also assist).
     17. The Authority:
         • Supports measures to improve the triage of applications (6.1).
         • Supports clarification that engagement on individual applications with Treaty partners is not required where Treaty partners have stated that engagement is not required (6.2).
         • Does not support a blanket “no consultation with Treaty partners” approach where the application proposes only minor changes to existing or previous concessions. The Act already provides for changes to conditions in a concession document to be processed without public notification, where the variation is of a minor and technical nature and does not materially increase the adverse effects of the activity or the term of the activity, or materially change the location of the activity; or the variation will result in a reduction of the adverse effects or the duration of the activity (s 17ZC). No justification or analysis of potential risks is provided for any further expansion of the “no consultation” approach.
         • Generally supports creating statutory timeframes for all steps in the process (6.3), as discussed above. However, the Authority has some concerns about the specified 20 working day timeframe for engagement with Treaty partners. If Treaty partners’ involvement in that engagement were to be resourced (by the applicant), this timeframe is likely to be suitable in many situations, however the timeframe where Treaty partners are not able to meet that timeframe.
         • Has no objection to amending when public notification must happen in situations where the Department intends to grant a concession (6.4) and was under the impression that this is already the Department’s practice. The Authority is not supportive of the abstract proposal to reduce public notification requirements. It may be agreeable to this in specific situations but does not agree, for example, that grazing licences (across the board) are not deserving of notification as some grazing licenses have significant effects, such as from cattle entering waterways or areas of native vegetation.
         • Supports clarification of the reconsideration process (6.5).

     Section 7 Driving better performance and outcomes from concessions

     18. The Authority supports competitive allocation of some concession opportunities, alongside clarification of when and how concessions would be competitively allocated and clarity as to how incumbents are treated. This is familiar territory under the RMA, for example s 104(2A) “the consent authority must have regard to the value of the investment of the existing consent holder”.
     19. The criteria for deciding when to competitively allocate (7.1.2) do not currently appear to cover two important conservation considerations – firstly, whether competitive allocation may improve conservation outcomes, and secondly, whether there are Treaty obligations that count for or against competitive allocation.
     20. The criteria for deciding how to competitively allocate (7.1.3) are supported.
     21. The Authority supports having standard terms and conditions for concessions (7.2) and understood this to be the Department’s practice already.

     Section 8 Unlocking amenities areas to protect nature and enhance tourism

     22. The Authority’s concern with amenities areas is how to ensure they are appropriately located and, once established, do not create demand for expansion.
     23. The Authority does not support removing the requirement for NZCA recommendation for establishing amenities areas in national parks. The Authority cannot recall any examples of the Department seeking the Authority’s support for an amenities area that has not been given, and certainly none have been sought in the last 11 years. It is unfair and incorrect, therefore, for the Authority’s role to be described as a “shortcoming” in the existing tools (8.1).

     Section 9 Enabling more flexibility for land exchanges and disposals

     24. The Authority would strongly support the Department in moving forward with assessment of stewardship areas’ conservation values, as already allowed for under the Act. It would also support any necessary changes to the Act to enable stewardship land with low or no conservation values to be disposed of or exchanged.
     25. It does not support a more general loosening of protection over conservation lands (including higher value stewardship areas or specially protected areas). Protections of public conservation land do not only relate to the conservation values they hold, but also such protections have a value of ensuring protection in perpetuity, and this change removes that aspect of protecting in perpetuity.
     26. It does not support applying a “net conservation benefit” test beyond stewardship land exchanges under s 16A. While a 2018 paper by the Authority put forward the view that land exchange should be available wherever net conservation benefits to conservation land is achieved (not just stewardship land), that is no longer the Authority’s view. The Authority’s change of position is based on its concerns that:
         • Demonstrating “net conservation benefit” where conservation values are not like-for-like (eg different ecosystem types) requires judgments of what is more or less valued. Those judgments mean that different decision-makers will reach different views on whether there is a net conservation benefit. Some Ministers will be incentivised to reach a view that a “net conservation benefit” is achieved because they want to facilitate development that is reliant on the conservation area to be exchanged. This creates a risk that higher value conservation areas will be disposed of.
         • Where land is exchanged out of the conservation estate, it is usually because the land is wanted for a non-conservation purpose (eg in the Ruataniwha Dam case, the land was to be flooded for an irrigation dam). This is a net loss of New Zealand’s natural resources.
         • The categories of land that would not be eligible for disposal (under the current proposal) are far too narrow and will enable high value conservation areas to be disposed of.
     27. The Authority’s concerns about liberalising land exchanges and disposals are exacerbated by the proposal to reduce or remove the role of the Authority and Conservation Boards in approving general policy and conservation management strategies. These documents generally set the framework for land exchange and disposal decisions (eg they presently say only “no or very low” conservation value land can be exchanged). If the Minister approves NCMPs and area plans, the Minister can replace these policies with policies that enable high value land to be exchanged or disposed of. Any safeguards in the system are lost.
     28. The Authority supports additional clarification being provided in the NCMP and area plans as to how to determine net conservation benefit for the purpose of stewardship area land exchanges.

     Exploring charging for access to some public consultation land

     Who should be charged

     29. The Authority supports charging international visitors for access to conservation areas.
     30. The Authority strongly opposes charging New Zealanders. The key reasons are:
         • There was a form of constitutional agreement when the NPA was set up to provide for freedom of access. Many interests were given over in the forming of our conservation lands, and freedom of access was a key benefit given to all citizens when National Parks and Public Conservation Lands have been established. To change this sets up the Department as a de facto tourism provider, and charging for access becomes a form of property right that at some later time could even be handed over in the form of concessions etc.
         • As a country, we need more New Zealanders connected with nature and engaged in conservation. Placing barriers in the way of this would run counter to New Zealand’s interests.
         • It is unethical, and contrary to the protections promised in Te Tiriti o Waitangi, to charge mana whenua for access to their ancestral lands and waters or prevent the exercise of kaitiakitanga.
         • This view does not extend to charging New Zealanders for some facilities, such as huts and carparks.

     Where access charges should be used

     31. Matters that should be considered as part of any charging framework are:
         • How to avoid creating the perception that commercial-level facilities should be provided (or creating demand for these), eg cafes or hotel style huts.
         • Managing the perception of “double dipping” through the IVL and access charges. For example, it will be important to communicate the different purposes of these different contributions.
         • The system will need to be simple for visitors, with low implementation and compliance costs, and it should not inadvertently create compliance issues for New Zealanders (eg by requiring them to prove that they are not international visitors).
         • The charging mechanisms should ideally avoid obvious commercialisation e.g. entry gates with a payment mechanism.
     32. For overseas visitors, some Authority members considered that an access charge should apply to every conservation area (similar to a membership pass). Others considered there should be provision for internationals who are not regular conservation area visitors to enter accessible short walks without charge, to encourage an interest in nature that may well lead to more engagement (and spending) later.

     How the money should be used

     33. Authority members felt that most revenue should be used at place, with a proportion going to the wider region and a proportion nationally distributed for conservation and facilities in less visited places. If all revenue goes back to the place where it is earned, this means well-visited places may become overdeveloped and less visited places will remain under-developed and run down.
     34. It could mean, for example, that the Auckland area with 1.5 m people would result in the resource enriching the Auckland DOC sites, while the lower population areas such as the South Island or less visited areas would struggle.
     35. A 60/20/20 split may be appropriate, but there may be reasons for different allocations in different places. The Authority’s Ngāi Tahu appointee advised that the Ngāi Tahu perspective is that funds generated from accessing conservation areas in its takiwa should remain in the takiwa.
     36. A concern that was expressed is that with most national parks being in the South Island and the proposal to return access fees to the location, it would over time create an inequitable distribution of funds, possibly favouring the 'big iconic sites' over smaller sites spread throughout NZ. If a visitor knew they'd be charged a fee they would be more likely to favour the big iconic sites where there are better facilities and more information about them available. A way around this, for example, could be something like a set rate for visiting up to 8 sites (random number but could be split to indicate X number of national parks, x number of other sites) within a 9-month period (the maximum stay for a NZ Visitors Visa). The income off those passes could then be spread more evenly.
     37. The Authority would strongly support the funds being used for conservation purposes, and not only facilities. It would like to see the ability to disburse funds to mana whenua for conservation projects.