Launch of the Conservation Law Reform Roadmap
Hon Kiri Allan, Minister of Conservation
Launch of the Conservation Law Reform Roadmap
Friday 10 December 2021
Thank you for joining me today. I’m delighted to be announcing new work to address long-standing problems in conservation law – and a major step towards laying the foundation for fundamental reform: a review of the Wildlife Act 1953.
We are at a defining moment for nature. Our unique species, many of which are found nowhere else in the world, are declining – despite our efforts to look after them. Around 4000 species are threatened or at risk of extinction. While legislation does provide powerful mechanisms to protect areas containing threatened species, these are not working well to address the overall biodiversity decline.
As people who work within the conservation legislation system, I’m sure you will agree that we need better tools to protect and manage our biodiversity. Many of you are leading the way in thinking about the issues with our current system and how we can make improvements.
I want to recognise the members of the New Zealand Conservation Authority here today; the contributions you make in your NZCA roles and in your communities are significant and highly relevant to the delivery of better conservation outcomes in Aotearoa.
EDS have recently released a report on conservation law issues, which provides an extensive overview of the current legislative system. It points out that the conservation planning and management system is not effective, our legislation does not adequately protect species, and that it does not support a true Tiriti partnership.
And many of you are involved in the work on the transformation of tourism – including DOC’s own Heritage and Visitor Strategy – and the implementation of the Aotearoa New Zealand Biodiversity Strategy – Te Mana o te Taiao.
Today I’m announcing plans to make more immediate improvements to conservation management planning and permissions, and to review the Wildlife Act 1953. DOC is also starting to lay the groundwork for comprehensive law reform, looking at the wide range of conservation legislation. This roadmap shows how we will begin to modernise conservation law.
Why we need to improve conservation legislation
There are 24 Acts in the suite of conservation law, with the main Acts mostly developed in an ad-hoc way over a span of nearly 70 years.
The current legislation is out of date and isn’t fit for purpose – we need something better that can endure far into the future and tackle the current and emerging threats to biodiversity.
Recent reviews and reports, court rulings and reviews show that the whole conservation legislation system needs to be updated.
And here I want to acknowledge Haana Murray, Hema Nui a Tawhaki Witana, Te Witi McMath, Tama Poata, Katariana Rimene and John Hippolite – the six original claimants who had the foresight and wisdom to lodge the Wai 262 claim with the Waitangi Tribunal in October 1991. Ko Aotearoa Tēnei, the report on the Wai 262 claim, recommended wide-ranging reforms to law and policy – including in respect of the Wildlife Act and to conservation policy more broadly. In August 2019, the Government announced a whole-of-government response to Wai 262.
There are recent court decisions such as the Ngāi Tai ki Tāmaki case which highlight the importance of giving effect to the principles of the Treaty of Waitangi as required by section 4 of the Conservation Act. Although it dealt specifically with concessions, it has implications for all levels of DOC’s work. Partial reviews of Conservation General Policy and General Policy for National Parks are being undertaken to better reflect Treaty responsibilities in conservation.
Te Mana o te Taiao – the Aotearoa New Zealand Biodiversity Strategy highlights the need for updated and improved systems and processes to enable better protection and restoration of biodiversity – particularly in terms of legislation.
And as I mentioned earlier, the EDS report frames the need for better conservation legislation as well.
There are three broad areas where conservation legislation needs improvement:
Current conservation legislation needs to better provide for the management of threatened species, and address large-scale pressures on ecosystems and species;
The Māori-Crown partnership in conservation needs to be reset; and
We need better tools that more accurately reflect the role of conservation in society and the economy.
There are many problems with the current legislation that highlight the need for change. They span the Conservation Act, the Wildlife Act, the National Parks Act, the Reserves Act, the Wild Animal Control Act, the Marine Mammals Protection Act, and the Marine Reserves Act.
Some work is already underway to address issues that have arisen over the past few years, as you can see on the roadmap. These work programmes show that there are a wide range of issues with conservation legislation across Acts and domains – and these are just the problems that we’ve been able to start addressing.
Amendments to the Trade in Endangered Species Act will save time and resources and allow us to better focus on enforcing CITES regulations.
Usually if a specimen is traded in contravention of CITES and the TIES Act, it is seized and disposed of – which often means it is destroyed or occasionally gifted to an institution such as a museum. In very limited circumstances it may be appropriate for a CITES specimen that has a permit but hasn’t met all the requirements under the TIES Act to be returned to a trader. This might occur if there is an error on the permit, or something went wrong in the permit process. However, the current TIES Act does not have clear mechanisms to enable decision-makers to consider these cases and decide when a seized specimen should be returned to a trader. This makes consistent decision-making difficult and takes up a lot of time for everyone involved.
The reform of the TIES Act will set out clear and defined circumstances under which it is appropriate for items to be returned to traders – where there were errors or unexpected circumstances arose. The changes will ensure the process is clear, certain and consistent.
When the bill is referred to Select Committee, likely in mid-2022, there will be another opportunity for public input before it becomes law.
DOC has recently released a discussion document outlining proposals for improving the process for reclassifying stewardship land. This work will ensure that land is appropriately managed according to its conservation values.
Consultation is currently underway and will continue through the beginning of 2022.
In the marine space, our Government is working to implement the Revitalising the Gulf strategy to increase marine protection in the Hauraki Gulf.
Public consultation is planned for the latter half of 2022.
Alongside the work that is already underway, the roadmap also shows a couple of new work programmes.
The Conservation Management and Processes amendments will make the tools within the conservation planning framework more user-friendly for everyone involved – whether you’re a tourism operator, business owner or researcher. This work is important from a regulatory stewardship perspective; as we work to prepare for fundamental reform, we also need to keep our house in order.
The review of Wildlife Act will be a ‘first principles’ examination of how Aotearoa New Zealand should protect our species.
DOC will be engaging with you and your organisations on both of these work streams during the first quarter of 2022—retesting the management and process amendments that were first proposed back in 2016, and starting the conversation about species protection reform.
Today I’m going to outline our next steps for improving the current legislative framework, to ensure that there are benefits on the ground for biodiversity as soon as possible. And I’ll outline what we’re preparing in terms of laying the foundations for broader reform.
Improving conservation management and planning processes
In the near-term, there are ways we can make the current legislative framework more workable.
There are areas of conservation legislation, particularly in the Conservation Act 1987, the National Parks Act 1980, and Reserves Act 1977 where minor and technical issues are causing unnecessary problems for conservation management and planning. Despite DOC’s best efforts to address these issues within the current framework, they often come up against legislative barriers.
Many conservation management strategies and plans are out of date and aren’t fit for purpose. Reviewing them is a slow and painful process, and public frustration with management plans is well documented. Management strategies and plans are crucial in guiding what people can and cannot do in our national parks and conservation areas. These frustrations are felt by recreational users, businesses, tangata whenua, and conservationists alike.
For example, cycle trails in Otago couldn’t easily be made even though the community supported them. It took over a year and a half for the review process to reach the NZCA for their consideration and approval.
We will be looking at section 17H of the Conservation Act to see how we can make these reviews easier and more efficient, while continuing to ensure conservation values are upheld.
Concession and permit applications affect a range of the population from tourism operators to researchers. The current system for processing concession applications outlined in Part 3B of the Conservation Act is slow and costly.
For example, section 17S doesn’t make use of modern technology or provide for responsive timeframes for decision making.
There is a shark researcher in the Bay of Plenty who is still waiting for a research permit to be approved 11 months after submitting his application. A lengthy and expensive process doesn’t encourage people to do the right thing and obtain the relevant concession or permit.
There are also barriers to carrying out important restoration work. Take a project where someone is wanting to improve or establish a new native forest by planting seeds from nearby – if the seeds they need are on public conservation land, they’re unlikely to be approved for a permit to collect them – because the legislation only allows the gathering of seeds for scientific purposes. Various processes in set forth in a range of sections of the Conservation Act, National Parks Act, and Reserves Act need to be aligned.
There are ways we can improve the process defined in section 17T of the Conservation Act for managing concessions applications by removing duplications in the tender process and setting quicker timeframes.
Enabling “digital-by-default” is one of the first steps we can take to reduce costs and stress for concessionaires and make it easier for the public to engage in management plans (section 17G) and strategies (section 17F).
The way we manage concessions has not kept pace with societal and technological change.
Back when the legislation was created we didn’t foresee every visitor holding a high-resolution camera in their pocket, or unmanned aircraft being available at your local electronics store. The current one-size-fits-all approach doesn’t work when a hobby photographer is treated the same as a large filming company, and small drones are the same as helicopters.
We can consider amendments to section 17O of the Conservation Act and how new fit-for-purpose processes might be triggered for different complexities of concessions applications.
Taking a more considered approach to how we allocate economic opportunities will deliver improved conservation and wellbeing outcomes. Opening economic opportunities to new ideas and innovative experiences will recognise the contributions many concessionaires make to conservation.
The aim of these changes will be to make the tools within the conservation planning framework more user-friendly for everyone involved – whether you’re a tourism operator, business owner or researcher.
We lack the legislation we need to protect and manage our species
This regulatory stewardship work to improve management and planning processes will provide us with some short-term wins for biodiversity. But as I said at the beginning, we also need to start thinking about the big picture – ensuring that conservation legislation is up to date, enduring and reflective of our values.
Despite the huge importance of native species to our environment, society and wellbeing, we do not have dedicated legislation for the conservation and management of threatened species.
The closest piece of legislation we currently have is the Wildlife Act 1953, which has no clear purpose and lacks coherence. It’s outdated, does a poor job at protecting many species - especially when they are interacting with people, and it doesn’t reflect Treaty principles or support customary use.
The Wildlife Act is now 68 years old. To paint a picture of conservation values at the time, many people viewed kea as a pest because they sometimes attacked sheep. There was even a kea bounty up until 1970. You could earn $50 in today’s money for killing a kea.
In terms of the scientific landscape in 1953, scientists had only just determined the structure of DNA, and climate change was an unknown concept. And while there have been tweaks to the Wildlife Act since then, it mostly remains unchanged.
A key issue with the Wildlife Act is that many threatened animal species are omitted from its protection.
The protection the Wildlife Act provides is not consistent, or proportionate relative to threat. Some ‘non-threatened’ animals such as grey warblers are absolutely protected, but other species – for example, most freshwater fish and insects – are not protected although many are threatened. It also doesn’t provide a way to protect or restore the habitats that are essential for these vulnerable species or address how these areas are being affected by issues like climate change.
Another significant problem with the Wildlife Act is that section 53 doesn’t allow interactions between wildlife and people to be managed in a way that protects wildlife.
You may recall that a few years ago a tourism business wanted to attract Great White sharks to their cage using burley and bait, but commercial paua divers feared for their safety, worried that shark cage diving would attract more sharks and make them more aggressive to people.
This played out in the courts for years – DOC was involved because Great White sharks are absolutely protected by the Wildlife Act. In an attempt to regulate the activity, DOC granted a permit to the tourism company to allow it to interact with the protected sharks, provided it complied with a range of conditions. Eventually the Supreme Court ruled that DOC had no authority to grant a permit in this case.
This decision has had broad implications for DOC’s ability to regulate most interactions between people and protected wildlife. We can’t do things like play bird sounds to attract gannets to areas that would make good breeding grounds, because this is classed as active disturbance of wildlife – even though it may help to restore the population.
It also means we don’t have a mechanism in the Wildlife Act to protect species from works that will disrupt them. For example, DOC recently found itself limited in its ability to require relocation of pekapeka (long-tailed bats) living in trees that are in the route of a new motorway. DOC could only consider an application from a developer or Waka Kotahi NZ Transport Agency to accidentally kill protected wildlife in the construction process. An application to proactively handle and relocate the bats – our Bird of the Year – could not be granted.
Another problem with the Act is that it asserts Crown ownership of wildlife, which undermines Treaty principles. The legislative framework needs to be updated to reflect our evolving understanding of Te Tiriti obligations. There are also issues over the ownership of the remains of species. For example, taonga derived from wildlife – such as whale bone carvings, and korowai made from feathers – technically cannot be owned or sold by anyone.
And lastly, the Wildlife Act doesn’t provide for our threatened and taonga plant species, which are poorly protected outside of protected areas.
We are limited in our ability to protect our most endangered plants such as Barletts rātā, a significant taonga with fewer than 13 plants left in the wild. We can increase plant protection through land-management changes like reserve classifications, but these mechanisms are very slow relative to the threats and declining status.
These are just a few examples of problems with the Wildlife Act – the issues are complex and connected, so can’t be tweaked or fixed one at a time. That’s why I’m starting a full review of the Wildlife Act, to make sure we take a holistic approach towards how we can best protect our species in the future.
Longer term – preparing for broader reform
Reviewing the Wildlife Act will help to establish the foundation for future comprehensive legislation reform. Given the range of reforms this Government is already pursuing, we need to make sure that tangata whenua and stakeholders have the space and capacity to engage, so we won’t be starting comprehensive reform now. But the work on this roadmap will help us prepare for when that can happen.
Whatever shape any future reform takes, I think we can agree that it should take place in a way that allows us to look at conservation legislation holistically. This includes considering the range of values people hold, and how conservation intersects with the economy and society. It also needs to strengthen the role for tangata whenua, and ensure a process that enables everyone in the system – all of you in this room – to contribute to the solutions.
The roadmap signals when there will be upcoming engagement opportunities, and it will be regularly updated as the new projects are developed.
I look forward to DOC working with you to develop a modern legislative system that both protects our environment and sees communities thrive.
Kia ora kōtou katoa.