In the “Supporting information on Te Pēwhairangi (Bay of Islands) marine mammal sanctuary proposal”
1. About this document
The purpose of this document is to provide supporting information and analysis for the public consultation document ‘A proposal to establish a marine mammal sanctuary in Te Pēwhairangi (Bay of Islands)’.
Further information is also provided in appendices to this document, and in supporting research documents available at the following link: www.doc.govt.nz/boimms
2. Background on development of the marine mammal sanctuary proposal
The marine mammal sanctuary (MMS) proposed by the Minister of Conservation has been developed by the Department of Conservation Te Papa Atawhai working in partnership with Ngā Hapū o te Pēwhairangi1 to address the declining number of bottlenose dolphins.
2.1 New conditions were introduced to commercial marine mammal viewing permits in Te Pēwhairangi (Bay of Islands) June 2019
In June 2019, new conditions were introduced to commercial marine mammal viewing permits in Te Pēwhairangi (Bay of Islands), addressing some of the bottlenose dolphin population decline issues. These conditions applied to commercial operators who hold a marine mammal viewing permit2 and included creating ‘no interaction with the dolphins’ zones (over a similar area to proposed marine mammal safe zones) and prohibiting commercial swimming with the dolphins in Te Pēwhairangi (Bay of Islands).
However, further action was needed to address the two other user groups interacting with dolphins – commercial maritime vessels that do not have a marine mammal viewing permit and private vessels – which led to investigations into various statutory and non-statutory approaches to addressing the problem.
2.2 Statutory and non-statutory approaches considered in addressing the decline in bottlenose dolphin numbers
Following the process to introduce new conditions to existing marine mammal viewing permits in 2019, the feasibility of various other management tools was investigated. It was concluded that a marine mammal sanctuary was the most appropriate tool to address declining bottlenose dolphin numbers in Te Pēwhairangi (Bay of Islands).
- Hapū identified that the use of mātauranga Māori and tikanga protocols, ie rāhui, could support and enhance statutory measures. Rāhui is a traditional ‘management system’ for Te Taiao/the environment for the purpose of protecting taonga/treasures. In this instance, a rāhui could have been placed over Te Pēwhairangi (Bay of Islands) to additionally regulate human behaviour.
- Non-statutory rāhui can be implemented quickly through social means but cannot be enforced by the Courts without the ability to prosecute.
- A rāhui established under section 186A of the Fisheries Act 19963 could restrict fishing in a prescribed area; however, as with implementing the MMPR, enforcing a fishing breach of a rāhui would be difficult to prove intent and prosecute. It would also not prevent vessels entering and transiting the rahui area. Targeting fishing would also not address the key issue of vessel and human interactions with dolphins. Numerous customary fishing management tools already exist in Te Pēwhairangi (Bay of Islands), including rāhui (discussed in section 4.4). Future marine mammal management in Te Pēwhairangi (Bay of Islands) will include an integrated management approach with Fisheries New Zealand and existing mana whenua customary management bodies.
- The Marine Mammals Protection Act 19784 (MMPA) provides for Population Management Plans for threatened species or other species of marine mammal. As the focus of these plans is on allowable fishing limits and fishing-related mortality, a Population Management Plan would not be appropriate for Te Pēwhairangi (Bay of Islands) situation.
- The Marine Reserves Act 19715 provides for the creation of marine reserves. These reserves create areas free from human-related alterations to marine habitats and life, providing a useful comparison for scientists to study. However, the focus is on ‘no take’ and, again, does not address activities such as swimming, snorkelling, boating and diving. As such, it is not an appropriate tool for Te Pēwhairangi (Bay of Islands).
- The proposed restrictions of the MMS described in this document and the consultation document would not target fishing or customary take; rather, vessel and human interactions with marine mammals.
- The New Zealand Coastal Policy Statement6 (NZCPS) guides local authorities in their day-to-day management of the coastal environment. Policy 11 of the NZCPS requires councils to avoid adverse effects of activities on the significant habitat of indigenous taxa, which could include bottlenose dolphins. Enforcement under the NZCPS is challenging, as the way councils give regard to the NZCPS varies around the country. The Combined Northland Regional Plan is being developed and currently subject to Environment Court proceedings. Because of the stage of the process this plan is at, it is not considered an appropriate tool to address the immediate problem in Te Pēwhairangi (Bay of Islands). Future marine mammal management in Te Pēwhairangi (Bay of Islands) will include collaboration with the Northland Regional Council to align both of these management tools to achieve marine mammal protection and broader integrated marine management.
- A review of the current Marine Mammals Protection Regulations 19927 (MMPR) would be beneficial, but the long timescales involved in reform means a MMS is the most effective way to address the immediate need in Te Pēwhairangi (Bay of Islands). Furthermore, the causes of decline in bottlenose dolphins in Te Pēwhairangi (Bay of Islands) are specific to the area and may not be adequately dealt with in any nationwide reform of the MMPR. Further details on the inadequacies of the MMPR are discussed below.
2.3 Inadequacies of the Marine Mammals Protection Regulations 1992 (MMPR)
The MMPR in their current form are unable to adequately address the area-specific issues in Te Pēwhairangi (Bay of Islands) causing the decline in bottlenose dolphins.
2.3.1 Burden of proof
- Where an operator has a permit or a concession, the Department of Conservation Te Papa Atawhai can rely on civil remedies in order to enforce compliance, such as
- suspending or terminating the concession. Civil remedies have a lower burden of proof
in a Court of law, so the Department of Conservation Te Papa Atawhai only has to prove
on the balance of probabilities that the operator has breached the terms of their
- If an operator or a member of the public does not have a permit or a concession, then the Department of Conservation Te Papa Atawhai cannot rely on civil remedies and, instead, can only prosecute a breach of the legislation. The criminal burden of proof is higher, and the Department of Conservation Te Papa Atawhai has to prove beyond reasonable doubt that a breach of the legislation has occurred. Securing a conviction is difficult for this reason.
2.3.2 Cumulative impact
- The nationally applicable MMPR do not address locally specific impacts on marine mammals and would be unlikely to be locally specific enough, even with review.
- In Te Pēwhairangi (Bay of Islands), bottlenose dolphins spend on average 86% of their day-light hours in the presence of at least one vessel and up to 400 vessels across the day. The level of vessel interactions with marine mammals in Te Pēwhairangi (Bay of Islands) is significantly higher than in all other areas of New Zealand.
- The MMPR in their current form address interactions as instantaneous singular events, ie number of vessels within 300 m at a single point in time or closest point of approach during an interaction. The MMPR do not regulate for the cumulative impacts of multiple interactions over time.
3. The legislative regime for establishing a MMS and for marine mammal protection
3.1 Department of Conservation Te Papa Atawhai and marine mammals under the Marine Mammals Protection Act 1978 (MMPA)
- The Department of Conservation Te Papa Atawhai administers the MMPA which provides for the conservation, protection and management of marine mammals.
- The MMPA enables the establishment of MMS within which activities known to harm marine mammal species can be prohibited, or restricted and strictly controlled by the Minister of Conservation.
3.2 Process for considering Te Pēwhairangi (Bay of Islands) MMS proposal under the MMPA
Marine Mammal Sanctuary proposals are considered under section 22 of the MMPA in
accordance with the following process:
- A notice for the proposed MMS is placed in the NZ Gazette outlining the location of the proposed sanctuary, the proposed restrictions, and providing members of the public with 28 days to make a submission on the sanctuary proposal. This was done on 20 April 2021. A copy of the Gazette notice can be found in Appendix 1.
- Anyone is then able to make a submission on the MMS proposal within a 28 day period, either by the website (www.doc.govt.nz/boimms), email, post or in person at the Kerikeri Department of Conservation Office. The 28-day consultation period finishes at 5 pm on 18 May 2021. Further details on how to make a submission are included in the consultation document.
- The Minister of Conservation will then consider submissions on the MMS proposal and either decide to declare the sanctuary as defined in the first Gazette notice, or decide to vary, redefine or abolish the sanctuary proposal.
- Before making a decision to declare, vary, redefine or abolish the proposed MMS, the Minister of Conservation will seek the consent of all other Ministers who control any Crown-owned land, foreshore, seabed or waters of the sea in the area which is declared to be a MMS.
- The proposed MMS, including its proposed restrictions, would become operational if a final notice is then placed in the Gazette declaring the sanctuary, and its restrictions.
4. The Treaty of Waitangi and the special relationship between the Crown and Māori
4.1 Crown obligations and decision making
The Crown has obligations to Māori through the Treaty of Waitangi and legislation. The Marine Mammals Protection Act 1978 is subject to the obligation under section 4 of the Conservation Act 19878 to give effect to the principles of the Treaty of Waitangi. This includes any decision under section 22 of the Marine Mammals Protection Act 1978 in relation to the marine mammal sanctuary proposal.
The Treaty principles that are most relevant to marine mammal protection and management are:
4.1.1 Partnership – mutual good faith and reasonableness
The Crown and Māori must act towards each other reasonably and in good faith. These mutual duties are the core of what has been described as the Treaty partnership.
4.1.2 Informed decision-making
Both the Crown and Māori need to be well informed of each other’s interests and views. When exercising the right to govern, Crown decision-makers need to be fully informed, while for Māori, full information needs to be provided in order to contribute to the decision-making process. This is connected closely to the principles of good faith and active protection.
4.1.3 Active protection
The Crown must actively protect Māori interests retained under the Treaty as part of the promises made in the Treaty for the right to govern. This includes the promise to protect tino rangatiratanga and taonga. Active protection requires informed decision-making and judgement as to what is reasonable in the circumstances.
4.1.4 Redress and reconciliation
The Treaty relationship should include processes to address differences of view between the Crown and Māori. The Crown must preserve the capacity to provide redress for proven grievances from not upholding the promises made in the Treaty. Māori and the Crown should demonstrate reconciliation as grievances are addressed.
4.2 Te Takutai Moana Act 2011 and the MMS process
Te Takutai Moana Act 20119 (TM Act), in relation to the common marine and coastal area, protects the interests of New Zealanders, recognises the mana tuko iho exercised by whānau, hapū and iwi and as tangata whenua, and provides for the legal expression of customary interests. The requirements of the TM Act directly impact the MMS statutory process. Under the TM Act, whānau, hapū and iwi who exercise kaitiakitanga in a part of the common marine and coastal area where a ‘conservation process’ is being considered (such as a MMS proposal) have a right to participate in the process and provide their views.
The Director-General of Conservation is required to give notice of any proposed conservation process to any affected whānau, hapū and iwi. This notice can be part of the public notice given of the proposal, eg in the Gazette notice. Sufficient information must be provided in the notice so that whānau, hapū or iwi can fully exercise their participation rights.
The Minister of Conservation is then required to have particular regard to the views of those affected whānau, hapū or iwi in making a decision on the MMS proposal10.
4.3 Customary marine title and protected customary rights applications and the MMS proposal
The TM Act provides a process for recognition of whānau, hapū or iwi customary marine title and protected customary rights. Numerous applications seeking recognition of customary marine title have been made in Te Pēwhairangi (Bay of Islands), to be progressed through direct engagement with the Crown or through the High Court. A full list of all TM Act applications in Te Pēwhairangi (Bay of Islands) can be found in Appendix 2. There are currently no scheduled High Court proceedings and no applicants have progressed to formal engagement with the
Minister for recognition of TM Act rights in Te Pēwhairangi (Bay of Islands). If a MMS were to be established in Te Pēwhairangi (Bay of Islands), the area of the sanctuary would remain part of the common marine and coastal area and, therefore, any applications for recognition of customary marine title and/or protected customary rights would still be able to proceed. There have been no determinations of TM Act rights in Te Pēwhairangi (Bay of Islands) to date.
4.4 The MMS and Māori customary fishing rights and interests
Customary fishing rights are protected in law by the Treaty of Waitangi (Fisheries Claims) Settlement Act 199211 and 1992 Deed of Settlement and include customary fishery management
and the exercise of other customary rights.
The following customary fisheries exist in Te Pēwhairangi (Bay of Islands) (Fig. 1):
- Ngati Kuta / Patukeha Rohe Moana and Nga Hapu o Taiamai Ki Te-Marangi Rohe
- Te Puna Mātaitai Reserve.
- Waikare Inlet Taiāpure.
- Maunganui Bay Rahui.
A MMS does not prevent the operation of existing or proposed rohe moana, mātaitai, rāhui and taiāpure under the Fisheries Act 1996 and arising out of the Treaty of Waitangi (Fisheries Claims) Settlement Act 1992.
A MMS under the MMPA brings additional management tools to the table that are not available under the Fisheries Act 1996 and its regulations, including the Fisheries (Kaimoana Customary Fishing) Regulations 1998.
Figure 1. Te Pēwhairangi MMS proposal and existing customary fishing tools.
4.5 Treaty settlement and the MMS proposal
The Department of Conservation Te Papa Atawhai has commitments in Treaty settlements, particularly through protocols and relationship agreements, which require engagement early on the matter for consultation; ensuring sufficient information and time is provided to enable effective participation; engaging with an open mind; and reporting back on the outcome. Many iwi, including Ngāpuhi (which Ngā Hapū o te Pēwhairangi are a part of) are still involved in Treaty settlement negotiations with the Crown.
5. Assessment of the proposed MMS
The MMS proposal includes restrictions aimed at reducing the amount of vessel and human interactions with marine mammals in Te Pēwhairangi (Bay of Islands), as the research indicates that this is what has led to the change in survival-critical dolphin behaviour.
- a restriction on being in the water with marine mammals in Te Pēwhairangi (Bay of Islands) within the wider MMS area;
- maintaining a vessel distance of 400 m from marine mammals in Te Pēwhairangi (Bay of Islands) within the wider MMS area; and
- the creation of two smaller marine mammal safe zones within the MMS where speed for all vessels will be restricted to 5 knots.
It is also proposed that a review of the MMS, including the impact and effectiveness of
restrictions and prohibitions, be performed 3 years after any MMS is declared.
|Swimming with marine mammals||
Swimming with any marine mammals would be prohibited in the MMS.
This builds on restrictions that already exist for everyone under the MMPR, such as:
Under the MMPR, commercial operators are already prohibited from allowing swimming with marine mammals unless they hold a marine mammal viewing permit that permits swimming with marine mammals. All marine mammal viewing permits in Te Pēwhairangi (Bay of Islands) were amended in 2019 to prohibit swimming with bottlenose dolphins and whales.
Therefore, no commercial operators are currently allowed to swim with bottlenose dolphins and whales in Te Pēwhairangi (Bay of Islands).
|Marine commercial operators’ movements and interactions with marine mammals||
As noted, existing commercial operators with a marine mammal viewing permit already have a condition of no swimming with bottlenose dolphins and whales, and also a prohibition on interacting with marine mammals in areas similar to the proposed marine mammal safe zones. They will now have a requirement to maintain a speed of no more than 5 knots when transiting through the marine mammal safe zones.
Other commercial operators who do not have a marine mammal viewing permit are already required to refrain from marine mammal viewing or swimming within 300 m, as defined under the MMPR. Under the MMS these existing restrictions will be amended within the sanctuary area with a requirement to refrain from allowing patrons to swim within 400 m of marine mammals and for vessels to maintain a 400 m
All areas of Te Pēwhairangi (Bay of Islands) will remain open
|Private and recreational vessel movements and interactions with marine mammals||
Private and recreational vessels will be required to refrain from swimming within 400 m of marine mammals within the MMS area; maintain a 400 m distance from marine mammals and keep to the 5 knot speed limit in the marine mammal safe zones.
This simplifies and builds on restrictions that already exist for everyone under the MMPR, such as:
- Hapū of the Bay of Islands
- Any commercial operator who undertakes commercial operations where a purpose is to view or come into contact with any marine mammal in New Zealand or in New Zealand fisheries waters is required to have a marine mammal viewing permit issued under the Marine Mammal Protection Regulations 1992
- s47 and 48 te Takutai Moana Act 2011 (In the event of a dispute as to whether or which iwi, hapū or whānau are affected, the Director General of Conservation must make the final decision.)
Notice of intention to declare a marine mammal sanctuary (MMS) in Te Pēwhairangi (Bay of Islands)
Notice of Intention to Declare Marine Mammal Sanctuary
- I give notice that I intend (with the consent of the Minister of Energy and Resources, the
Minister for Oceans and Fisheries, and the Minister of Transport) to declare, pursuant to
section 22 of the Marine Mammals Protection Act 1978, a marine mammal sanctuary to be called Te Pēwhairangi (Bay of Islands) Marine Mammal Sanctuary, comprising all the areas of the sea enclosed by a straight line running from 174° 8.210' E, 35° 9.383' S to 174°
19.809' E, 35° 10.174' S (“the outer boundary”) and then running along the shoreline within
that outer boundary on the line of mean high water springs.
- It is proposed to have two Marine Mammal Safe Zones with the following outward facing
boundaries in the sea area:
- The first zone being between Motuarohia Island (Roberton Island) and Moturua Island, enclosed to the North by a straight line running from 174° 9.608' E , 35° 13.661' S to 174° 10.736' E, 35° 13.382' S and enclosed to the South by a straight line running from 174° 10.672' E, 35° 14.177' S to 174° 11.617' E, 35° 13.960' S;
- The second zone being sea area between Tapeka Point and Whangaiwahine Point enclosed to the South by a straight line running from 174° 7.390' E, 35° 14.498' S and 174° 11.237' E, 35° 14.904' S.
- A map of the proposed sanctuary is available at www.doc.govt.nz/boimms or on request
from a Department of Conservation office.
- The map is indicative only, and if there is a conflict between it and the written descriptions in this notice of the areas to which it relates, the written descriptions prevail.
- The following restrictions would apply to the proposed sanctuary, subject to the proposed exemptions in paragraphs 6 and 7 of this Notice:
- The marine mammal sanctuary would be established with “marine mammal safe zones” within its boundary.
- In a marine mammal safe zone the operator of a vessel would need to ensure that the vessel travels at no more than 5 knots at all times.
- Throughout the proposed sanctuary no person would be allowed to be in the water within 400 metres of a marine mammal.
- Throughout the proposed sanctuary every vessel operator would need to:
- ensure that the vessel it operates keeps 400 metres from any marine mammal.
- to use all reasonable means to stop if a marine mammal moves within 400 metres of the vessel operator’s vessel, to allow the marine mammal to move 400 metres away.
- The following vessels would be exempted from all restrictions in the proposed sanctuary:
- any vessel involved in a maritime emergency or undertaking a maritime emergency
- any vessel undertaking research under the Marine Mammals Protection Act 1978,
- any vessel undertaking a compliance role (including the Department of Conservation under the Marine Mammals Protection Act 1978, Maritime Police, Customs, Ministry for Primary Industries, Northland Regional Council),
- any Harbourmaster vessel,
- any Navy vessel.
- any vessel involved in a maritime emergency or undertaking a maritime emergency
- Any vessel with an existing marine mammal viewing permit under the Marine Mammals
Protection Act 1978 as at 20 April 2021 would be exempt from proposed restriction 5(4)(a).
- The following definition of “vessel” is proposed for the sanctuary conditions. “Vessel” means every description of boat or craft used in navigation, whether or not it has any means of propulsion; and includes:
- a barge, lighter, or other like vessel;
- a hovercraft or other thing deriving full or partial support in the atmosphere from the
reaction of air against the surface of the water over which it operates;
- a submarine or other submersible;
- a seaplane while it is on the surface of the water.
- I shall consider any written submission on my intention to create this sanctuary or on any of the restrictions I intend to impose if:
- it is addressed to:
- I receive it within 28 days after the publication of this notice in the New Zealand Gazette, being 18 May 2021.
- it is addressed to:
- Under te Takutai Moana Act 2011, any whānau, hapū or iwi, who consider they exercise kaitiakitanga in a part of the common marine and coastal area affected by my intention to declare the marine mammal sanctuary as set out in this notice may advise the Director- General accordingly, and provide their views on my intent in writing as above within 28 days after the publication of this notice in the New Zealand Gazette. I will have particular regard to those views.
Dated at Wellington this 20th day of April 2021.
HON Dr AYESHA VERRALL, Acting Minister of Conservation
|Application Number||Applicant Group|
|MAC-01-01-001||Awhirangi Panehina Lawrence Whanau, Mita Pomana Whanau, Takutai Moana whanau Trust|
|MAC-01-01-010||Haare-Himiana-Heta Whanau Hapu|
|MAC-01-01-014||The Hapu Patutoka, Tahawau, Whanau Pani Te Hokokeha Tawhiu (Waiparerea Marae)|
|MAC-01-01-021||Hikuwai - Ihaia Whanau|
|MAC-01-01-023||Ihaia Paora Weka Tuwhera Gavala Murray Mahinepua Reserve Trust Ngatirua Iti Ngati Muri Ngati ruamahue Ngati Kawau Ngati Haiti Ngaitupango Ngapuhi Ngati Kahu Te Aupouri|
|MAC-01-01-034||Merehora Taurua Whanau|
|MAC-01-01-035||Mita Pomana and Takutai Moana Heke Pomana Whanau|
|MAC-01-01-040||Ngā Hapū o Tangaroa ki Te Ihu o Manaia tai atu ki Mangawhai|
|MAC-01-01-044||Nga Uri o Hairama Pita Kino Reweti|
|MAC-01-01-050||Ngapuhi Nui Tonu (Awataha Marae)|
|MAC-01-01-056||Ngapuhi Nui Tonu (Te Kotahitanga Marae)|
|MAC-01-01-057||Ngapuhi Nui Tonu (Te Tii Marae)|
|MAC-01-01-059||Ngapuhi Nui Tonu-Kota-toka-tutaha-moana o whaingaroa|
|MAC-01-01-060||Ngapuhi, Ngati Wai, Haki Pereki and Ngawhetu Sadler Whanau Trust|
|MAC-01-01-073||Ngati Kawau and Te Waiariki Korora|
|MAC-01-01-076||Ngāti Kuta and Patukeha ki Te Rawhiti|
|MAC-01-01-078||Ngati Manu and its hapu, Te Uri Karaka and Te Uri o Raewera|
|MAC-01-01-081||Ngāti Rahiri and Ngāti Kawa|
|MAC-01-01-082||Ngāti Rēhia Hapū|
|MAC-01-01-087||Ngāti Torehina ki Matakā Hapu/Iwi of Niu Tireni|
|MAC-01-01-097||O Nga Hapu o Taimai ki te Marangai|
|MAC-01-01-103||Pene Hemi Kiwikiwi Whanau Trust|
|MAC-01-01-106||Rewha and Reweti Whanau|
|MAC-01-01-125||Te Hikutu whanau and hapu|
|MAC-01-01-131||Iwi, whānau and hapū of Ngātiwai|
|MAC-01-01-133||Te Kaunihera o Te Tai Tokerau|
|MAC-01-01-134||Te Kemara I Whanau, Ngati Kawa and Ngati Rahiri|
|MAC-01-01-149||Te Whanau a Rangiwhakaahu|
|MAC-01-01-151||Te Whanau Hau o Te Whiu Hapu|
|CIV-2017-404-523||O Nga Hapu o Taiamai ki te Marangai|
|CIV-2017-404-525||Ngati Manu and Ngati Rangi|
|CIV-2017-404-535||Ngati Rahiri hapu|
|CIV-2017-404-537||Nga Puhi nui toni, Ngati Rahiri, Ngati Awa, Nga Tahuhu and Ngaitawake|
|CIV-2017-404-570||Te Hikitu Hapū|
|CIV-2017-404-572||Ngati Torehina Ki Matakā, Hapu of Niu Tireni|
|CIV-2017-404-577||Ngāti Rahiri and Ngāti Kawa|
|CIV-2017-485-265||Nga uri o Tareha Kaiteke Te Kemara I, Ngati Kawa and Ngati Rahiri|
|CIV-2017-485-277||Ngāti Manu and its hapū Te Uri Karaka and Te Uri o Raewera|
|CIV-2017-485-283||Ngātiwai whānau, hapū and iwi|
|CIV-2017-485-298||Whakarara Maori Committee|
|CIV-2017-485-321||Ngāti Kuta and Te Patukeha ki Te Rawhiti|
|CIV-2017-485-352||Rewha and Reweti Whanau|
|CIV-2017-485-398||Ngati Kawau and Te Waiariki Korora|
|CIV-2017-485-408||Nga Uri o Hairama Pita Kino Davies|
|CIV-2017-485-510||Hapu of Ngāti Mokokohi, Te Tahawai, Te Uri-o-Te-Aho, Ngāti Ruamahue, Te Uri o Hua, Ngāti Rehia and Ngāti Torehina|