Te Urewera–Tūhoe Bill - NZCA submission
IntroductionSubmitted 26 November 2013: View the NZCA's submission on the Te Urewera–Tūhoe Bill.
Submission date: 26 November 2013
Submitted to: Maori Affairs Secretariat
Identification of submitter
The New Zealand Conservation Authority (NZCA) is a national statutory body established under the Conservation Act 1987. It has a major governance function in that it approves statements of general policy for national parks, conservation management strategies and national park management plans. It is also consulted by the Minister of Conservation and may advise the Minister on matters of national importance for conservation.
The NZCA approved the current management plan for Te Urewera. The role of the NZCA in this regard will be undertaken by the Board of Te Urewera with the passage of this Bill. The NZCA's future role in relation to Te Urewera is set out in Schedule 6, clause 22.
The NZCA is pleased to see the settlement of Ngai Tuhoe claims against the Crown embodied in the Bill. It has given close consideration to Parts 5 to 7 and Schedule 7 as those parts of the Bill in which it has expertise to offer owing to its understanding of the current statutory processes and the practices of the Department of Conservation.
This submission of the NZCA focuses upon aspects it believes would be helpful to the Board to clarify at this stage. The NZCA’s recommendations are based upon its own experience of unexpected surprises or frustrations that could have been avoided if the implications of a Bill and how it would be interpreted had been better understood before it was passed into law.
1. The NZCA recommends consistency of language and the elimination of double negatives. Clause 168(1) should read "consistent with" rather than "not inconsistent with" the management plan.
Explanation: The language would then match clause 126(2), which requires the Board to "act consistently" with Parts 5 and 7 and the management plan. Using a different phrase in different clauses to convey the same meaning only introduces confusion.
2. The NZCA recommends that clause 164(2)(a) read "consistent with" rather than "not contrary to".
Explanation: "Not contrary" is another form of double negative. The same reason as apply in the previous paragraph apply here also.
3. The NZCA recommends that clause 164(2) have an additional sub-clause (c) to read, "that a proposed activity is consistent with the management plan". Once again, the recommended phrasing echoes the general requirement of the Board set out in clause 126(2).
Explanation: Neither clause 164(2) or Schedule 7 clause 14 require decision-makers when considering an application for a concession or other activity that needs authorising to consider the management plan. This appears to be an oversight as the Board, as noted above, has a general duty to act consistently with the management plan, and concessionaires in Schedule 7 clause 15 have to act in accordance with the management plan. In the NZCA’s experience, decision-makers on concessions (in current circumstances usually a Department of Conservation delegate rather than the Minister in whose name an authorisation is granted – which practice may also be followed by the Urewera Board) are most likely to confine their reading of the legislative provisions governing their decisions to the sections of immediate application. Any legal advice may conclude that, in the absence of any reference to the management plan, there is no need for decisions to be consistent with it. The management plan is the means by which the strategy for managing Te Urewera will be articulated by the Board and the means by which Tuhoe and others have the opportunity to influence that. The NZCA believes that to secure Tuhoe and public confidence that the management plan is relevant for all aspects of Te Urewera, and to avoid surprises for the Board if it chooses to delegate decision-making on authorisations, that the management plan be referenced in clause 164(2)
4. The NZCA recommends that Schedule 7, clause16(f) sub-clause (i) be amended to substitute ‘a significant’ for "any" so that it reads "...makes a significant contribution...". A corresponding amendment should be made to subclause (ii), so that it reads "there is an-other significant non-commercial public benefit...".
Explanation: The NZCA supports the Board having the discretion to waive or reduce any rent, compensation or bond and that there be guidance in the Act in exercising that discretion. However, the use of "any" in sub-clauses (i) and (ii) sets an extremely low standard and may well give rise to argument over whether killing one deer or setting one stoat trap qualifies as "any contribution to the management of the land or the public interest in the lands" or "any other non-commercial public benefit in the activity". The suggested amendments would still require the Board to exercise judgement but the addition of "significant" would life the standard of contribution or benefit above the trivial.
5. In addition, the NZCA recommends that a new clause provide that any waiver or reduction of any rent, compensation or bond should be made by the Board and not delegated.
Explanation: Waivers and reductions are unlikely to be common. Retaining the power with the Board would maximise consistency and equity in decision-making on this aspect of authorisations.
6. The NZCA recommends that the reference to clause 164(2) in Schedule 7, section 14 be changed to 164(2)(a).
Explanation: Only clause 164(2)(a) refers to concessions covered in Schedule 7, section 14. Clause 164(2)(b) refers to activity permits addressed in clauses 1-6 of Schedule 7.
The NZCA wishes to be heard in support of its submission.
Dr Kay Booth