Submission on the Conservation Management and Processes (CMAP) Bill
IntroductionSubmitted 30 June 2022: Read the NZCA's submission regarding the recent introduction of the Conservation Management and Processes (CMAP) Bill.
The Legislative Basis for the New Zealand Conservation Authority submission
- The New Zealand Conservation Authority (NZCA) was established under the Conservation Act 1987 (Act), with members appointed by the Minister of 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.
- The NZCA has a growing 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) on its strategic direction and performance.
- The NZCA has a range of powers and functions, under the Act, as well as under other conservation related legislation. Under section 6C(2)(c) of the Act, the NZCA has the power to “advocate the interests of the Authority at any public forum or in any statutory planning process.”
- The NZCA submission is based on its analysis of:
- Conservation Management and Processes Bill: Discussion Document (CMAP)
- The NZCA makes its submission noting that issues with the statutory management planning system and processes stem largely from internal issues within the Department, however it recognises that some legislative amendments will help to make the system more efficient. The NZCA has long been advocating for a review of statutory management strategies and plans to be a priority for the Department.
- The NZCA also notes that there is currently an external review being conducted by the Environmental Defence Society (EDS) on the Department’s statutory management planning processes and The NZCA are hopeful that recommendations from this review, now due in late October 2022, will lead to improvements in the Department’s internal systems, as well as identifying appropriate approaches to co-authoring of plans resultant from Treaty settlements.
- The NZCA makes its submission under the assumption that the Department has appropriate Treaty partnership relations and consultation processes in place, and the commentary relates to all New Zealanders.
Chapter 1: Conservation Management Planning
- Maintaining up to date planning is a crucial investment, not only in the efficiency of resource spent in maintaining them, but in the value add for true and clear integrated management of public conservation land and waters.
- One area that will require careful attention in Chapter 1, will be a greater engagement with tangata whenua around setting regulations and boundaries to ensure section 4 of the Act is being implemented, and that tangata whenua interests are embedded and given effect.
- There is also the assumption that iwi hapū and whānau are treated as genuine partners, and to ensure that all interested parties are treated even handedly.
Issue 1A – The requirement that CMSs, CMPs and NPMPs are fully reviewed every 10 years is contributing to the growing backlog of documents in need of full review or development
- The NZCA does not find that the proposed options would practically resolve the issue:
- Option 1: a statutory check-in process at 10 years would not make the review process more efficient. The proposition indicates a critical issue in the Department’s review process, is the tendency to start from scratch with any review of a CMS or NPMP, rather than analysing the operative plan to understand what is working well and what needs potential adjustment.
- Option 2: extending the timeframe for full review of planning documents to 20 years would only succeed in alleviating pressure on the Department, in terms of the number of plans currently overdue for a review, but would not be practical for integrated management of public conservation land and waters. This option appears designed to defer the issue to a later date, particularly as there is no proposed mechanism for CMSs to address contemporary and emerging issues that did not exist at the time of the plan formulation (e.g., drones and e-bikes).
- The NZCA submits that the current 10-year timeframe for a full review should remain, with the review initiated in time for it to be completed prior to the expiry of the In conducting a review, the original document should be analysed to understand areas that require redrafting or drafting to reflect new issues and information identified by the Department, tangata whenua, and the public. The plan’s review should conclude at the 10-year period, as opposed to commencing. This is currently a Departmental process issue, however, if a statutory check-in is required to implement these timeframes, a five or seven-year check-in would be appropriate.
Issue 1B – Once a planning document is approved, it cannot be easily updated to reflect changing needs, new technology and evolving pressures
- The issue presents a big challenge, and it is not something that has been uniformly done well by the In any option moving forward, framing the provision around who is affected will be important, although there is a significant risk of affected persons not being identified, which could result in legal challenges.
- These statutory plans provide a democratic tool for integrated management of public conservation land and There must be care given to ensure they remain focused on the issues significant to people, organisations, PSGEs, and tangata whenua, rather than the Department deciding where the public interest lies, and therefore who is consulted. Reduced public involvement risks community alienation, poor outcomes, and unforeseen impacts.
- The rationale for initiating a streamlined partial review process, lies around public interest being limited, or the changes relate to a confirmed But what these are, or potentially may be, is not defined. Therefore, the solution is essentially open-ended and dependent on a lack of transparency.
- The NZCA submits that longer term partial reviews are an inefficient way of planning in terms of both time and resources, as opposed to regular full reviews.
Issue 1C – The current process for public engagement in developing and reviewing planning documents is outdated and inflexible
- The NZCA submits that if the operative plan is used to guide a review, then removing the first stage of public engagement makes sense, as everyone understands the start point. The proposal to remove one layer of public notification will need to be accompanied by a high-quality communication strategy and maximised use of modernised systems to reduce negative impact.
- The NZCA submits that, in the formation of a new planning document, or where extensive modification of an existing document is envisaged, there will need to be input from the community.
Issue 1C(i) – The requirement to publicly notify the intent to develop or review an NPMP is inefficient
- The NZCA submits that while Conservation Boards should still be consulted, the public should not be informed of the process commencing and therefore the opportunity to provide written submissions regarding the drafting or reviewing of an In keeping with processes for the development of a CMS (s17F of the Act), the opportunity for public input should come once the draft plan has been released.
- The NZCA finds that, provided the notification is made 3 months earlier, the completion of a plan will not be delayed and that the cost of advertising and analysing written submissions is modest, provided that modern communication methods are utilised.
Issue 1C(ii) – The requirements for public notification and seeking public input on a notified draft planning document are outdated and overly prescriptive
- The statutory planning process must be transparent and fair, with established timeframes and allowing for public consultation. Public engagement should be actively encouraged, and void of participation processes potentially tainted by preconceived biases (such as through facilitated workshops). Detailed official records should be kept of all public engagement, for potentially legal ramifications.
- The NZCA agrees with the utilisation of modern communication methods to increase participation. The Department should be required to use the full range of tools available to communicate, noting that these methods of communication will continue to adapt over time. Legislation should enable the Department to adapt to innovative technologies now and in the future.
- The NZCA submits that written submissions and public hearings should be maintained, as each are an important part of the planning process, especially when complex issues are With modern technology they can take different forms, but the opportunity to clarify a submitter’s concerns is an essential part of the process. Involving the NZCA in hearings could enable efficiency in the process, as it allows issues to be understood by all parties involved at the offset.
- Other communication methods (e.g., online forums, public meetings) can still be run in addition to, rather than in replacement of those prescribed. Public meetings are very different to and not an adequate replacement for public hearings.
- The NZCA submits that the time limit on revised drafts going to the conservation boards should be retained, and that submitters should be provided with a clear timeframe in which to submit, otherwise the process could have no potential end.
Issue 1C(iii) – The requirements for publishing draft or approved planning documents do not reflect modern preferences for accessing information
- The NZCA agrees with modernising publication requirements and supports Option 1. Non-printing/publication of planning documents would also require modernised systems and a consciousness that there is a tendency to increase the size of documents when hard copies are not required. There should be a focus on drafting styles that reduce superfluous material.
Implementation and Monitoring
- The NZCA is well aware that the Department does not currently actively monitor how well it is meeting Milestones in CMS and NPMPs, and it continues to disregard the efforts and concerns of conservation boards, whose function it is to monitor the implementation (sections 6M(1)(c) of the Act and 30(1) of the National Parks Act 1980 refers). As a result, the Department cannot tell how effective the statutory documents are, and whether they are still of value.
Chapter 2: Concessions
- The NZCA agrees that the current situation is underperforming and supports, in principle, the suggested options. All options would need to be accompanied by information and setting of regulations, boundaries, and clear rules that also clearly address section 4 interests or involve tangata whenua at appropriate levels.
- The NZCA is concerned that the proposals provide the Department with additional decision-making powers, however, the NZCA has observed that the Department has a culture issue around making difficult It will, therefore, be important to consider how this system might be reviewed if it is ineffective in practice.
Issue 2A – All activities require individual concessions, even when these activities are commonplace and have no or minimal adverse effects that can be appropriately managed
- The NZCA supports Option 1, in principle, subject to the criteria being made more stringent. The proposed criteria for the scope of the regulation-making power are “any environmental impacts from the activity can be effectively managed”. This would apply to all activities as it is always possible to in theory effectively manage activities. The NZCA recommends a more constrained discretion, g., any environmental impacts are less than minor.
- The NZCA submits that processing delays could be reduced, and the clarity of permitting process enhanced if the Department proactively engages with tangata whenua, proactively upgrades permissions database system, and proactively develops clearer guidelines for decision makers and those seeking concessions.
- The NZCA submits that fees should still be collected as the Department requires funding for its remit of work.
Issue 2B – DOC cannot make a concession for pre-approved activities available on demand
- Pre-approval of one-off or individual activities, as noted in Issue 2B looks to have possible merit where impact is low level. Although, if the effects of an activity are well understood and have been assessed in advance, it should be an extremely easy process for the Department to approve a concession application once received, especially if modern platforms are adopted. Proactive communication by the Department of places and conditions under which a concession activity is likely to be approved would also assist.
- The concessions system should move emphasis to monitoring and evaluation of regulations and activities. There must be greater understanding of how adverse effects and unintended consequences might be determined in advance and addressed.
Issue 2C – It is unclear whether a concession application can be returned if tendering the opportunity would be more appropriate
- The first-in-first-served process has negative impacts, fails to address cumulative impacts, and potentially locks up or creates fairness issues, and limits opportunity for tangata whenua.
- The NZCA supports greater use of tendering as an allocation process to enable the Department to better manage and protect values, and address tangata whenua
- The NZCA does not agree that a concession application can be returned (reactive to application) if the Department wishes to initiate a tender process. Concession applications often require the applicant to invest considerable time and resources and it is important the consideration process is completed in a timely manner. Applications often contain considerable intellectual property and confidential information.
- The NZCA submits that the Department should proactively identify tangata whenua interests and make this information available prior to receipt of concession applications so that other potential concession applicants know that there will be a tendered process for those activities. Proactive identification should likely cover all, but the newest innovative proposal applications which would be more difficult to anticipate.
Issue 2D – The tender process does not allow a successful tender candidate to be offered a concession outright
- It is not clear whether the tender process ensures full information about environmental effects (with supporting technical reports) is provided and whether there is a process to require additional If this is the case, and the concession application is a true duplication, then this would be adequate. There is only one reference to “tender” in the Act and it does not appear to have any process requirements around it.
- The NZCA does not agree with Option 1, and submits that the requirements of stage 1 in the tendering process and stage 2 in the concession application be clarified, to avoid duplication and reduce the administrative burden. There is a need to streamline these processes, however other options should also be considered to achieve the outcomes
Issue 2E – There is no statutory timeframe for when requests for reconsideration of a decision may be sought
- The analysis of this issue is inadequate and there is no framework in the Act around it, compared to other processes, such as appeals under the RMA. The NZCA submits that the Department should consider further what the purpose of enabling reconsideration is and the scope of reconsiderations (is it a de novo process or limited e.g., to issues identified by the applicant, or to errors of law? Does it require a different decision-maker? Do the same timeframes apply? Do people get to submit again? Are previous submissions taken as being submissions on the new application? etc.)
- The NZCA agrees that a timeframe is required to seek an appeal for reconsideration, however, finds that the proposed 15-day window much too brief for the applicant to reasonably put together a If the applicant had to file all their evidence etc then 15 days would be too short, but if it’s just a matter of requesting a reconsideration with more detail to follow, then 15 days seems appropriate. This underscores the issue in the previous paragraph - that it is unclear what reconsideration involves and what the process is.
Chapter 3: Minor and technical amendments
- The NZCA supports the minor and technical amendments