26 September 2007
File: C162-14-00/TM
MPA Consultation
P.O. Box 11-146
Wellington 6011
New Zealand
Tena koe
Submission on the Marine Protected Areas Draft Classification and Protection
Standard
1. This submission is from Te Ohu Kai Moana Trustee Ltd (Te Ohu Kaimoana) in its
role as corporate trustee of Te Ohu Kai Moana Trust.
2. Te Ohu Kai Moana Trust was established under s.31 of the Maori Fisheries Act
2004. The purpose of Te Ohu Kai Moana Trust is to advance the interests of iwi
individually and collectively, primarily in the development of fisheries, fishing, and
fisheries-related activities, in order to
 ultimately benefit the members of iwi and Maori generally
 further the agreements made in the Deed of Settlement and to assist the
Crown to discharge its obligations under the Deed of Settlement and the
Treaty of Waitangi
 contribute to the achievement of an enduring settlement of the claims and
grievances referred to in the Deed of Settlement.
3.
In carrying out its role, Te Ohu Kaimoana works actively with iwi organisations
who have received, or who will receive fisheries assets under the Settlement.
We also work actively with the wider fishing industry and participate in industry
organisations to protect the interests of iwi and Maori as the beneficiaries of the
settlement
4.
We appreciate the opportunity to comment on the Marine Protected Areas Draft
Classification and Protection Standard dated June 2007. We circulated our draft
submission to iwi and Maori Fishing Companies. This submission therefore
takes into account the common concerns of iwi/Maori. This submission does not
however seek to undermine any submission that you may receive from individual
iwi or any iwi collectives or remove the obligation on Ministry of Fisheries (MFish)
and the Department of Conservation (DoC) to consult with iwi/Maori and other
stakeholders in the appropriate fashion.
5.
Staff attended meetings along with other industry members during August 2007
to seek, through extended discussion with government officials, to clarify the
intent and detail of the draft classification and protection standard. We noted our
concern at that time that there were no consultation meetings or hui organised
by MFish and DoC.
6.
Te Ohu Kaimoana considers it important that human impact on biodiversity is
managed so that biodiversity is not irreversibly damaged. However, consistent
with Maori resource management, sustainable utilisation of biodiversity should
be allowed, with activities being managed so that the biodiversity involved is not
subject to unacceptable risk. Therefore, while a cautious approach should be
followed, measures to restrain activities should reflect the sensitivity of the
biodiversity to the risks it is exposed to. There should be monitoring to ensure
the restraints are effective and an ability to alter the restraints if monitoring
shows this is needed (i.e. an adaptive management approach should be used).
There should be no additional restraints beyond those needed to ensure the
risks to biodiversity are managed to acceptable levels.
7.
A key concern is the potential erosion that implementation of the MPA policy in
the fashion set out and foreshadowed in the proposals will have on the
commercial and non-commercial assets and management options that were
promised as a result of the Deed of Settlement and the Treaty of Waitangi
(Fisheries Claims) Settlement Act 1992 (”the Settlement”).
8.
If you have any
questions concerning this submission please do not hesitate to contact me or
Tania McPherson at this office.
Naku noa, na
Craig Lawson
General Manager,
Policy and Operations
Te Ohu Kaimoana
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Executive Summary
We have a number of key concerns about the MPA policy development and the draft
classification and protection standard including:
The consultation process and document are inadequate and do not meet the
required standard for proper consultation
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Rather than the document being clear, unambiguous and able to be readily
understood by a moderately intelligent reader, it is far from easy to
understand, is vague and difficult to interpret.
The subsequent implementation processes are not made clear to readers
including their ability to participate in those processes.
A number of aspects in the document and subsequent processes appear to be
inconsistent with the Biodiversity Strategy and MPA policy without explaining
why.
Both MFish and DoC have employed a low key approach with minimal
communications or meetings arranged to explain the proposals.
The classification approach is not a credible way to identify and protect
different types of biodiversity
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It incorrectly interprets the MPA policy requirement to have separate
processes to establish nearshore and offshore MPAs to justify separate
classifications for the nearshore and offshore.
Using depth and substrate as proxies for biodiversity is an inadequate basis
for identifying biodiversity.
It is not proposed to verify that those proxies do represent different
ecosystems and habitats.
It does not provide compelling reasons for having 13 bioregions.
It does not adequately justify using bioregions and proxies rather than a MEC
system for nearshore biodiversity.
Officials’ interpretation of the protection standard when applied to fishing is
unduly restrictive
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The protection standard is not clearly stated – it must be inferred from the
contents of the document.
Officials consider that targeted management measures to control fishing
impacts on biodiversity are not feasible and as a result to meet the standard of
protection they propose to exclude fishing from MPAs.
This will mean all MPAs are marine reserves in nature if not in name.
This interpretation of whether the impact of fishing on the structures on the
seafloor and biological extraction breaches the protection standard is unduly
restrictive.
It is not justified when the protection standard is applied at an ecosystem or
habitat level rather than at localised sites within them.
The protection standard is not applied to fishing and other activities in a
consistent manner.
Because it is applied in a way that appears to be biased against fishing
compared with other activities, it conveys the impression that other activities
are valued more highly.
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Subsequent MPA processes are inadequate
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There is a greater need for national coordination so that consistent processes
and analysis are developed and used at the regional level.
The system must be open and transparent allowing affected stakeholders to
participate at whatever level – national or regional - they choose.
Analysis carried out by officials on the mapping of existing management
measures and assessments of whether those methods meet the protection
standard should be freely available to all affected stakeholders.
This analysis should be carried out for all bioregions at the same time as this
provides the opportunity to avoid unnecessary duplication of habitats within
MPAs as well as deciding where the least cost option is to fill priority gaps in
the network.
The consultation document describes how MPA forums are going to decide
which areas are to become MPAs but not who will be on them and how they
will make decisions
The document provides no robust analysis and decision tools leaving us
uncertain of how decisions will be made and what the likely effects will be.
The potential effects on the Fisheries Settlement are not clear but look set to be
detrimental – the size of the impact on the Settlement will be directly related to
the overall level of exclusion of fishing by MPAs
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New Zealand’s Biodiversity Strategy Objective 7.3 action a requires that
biodiversity management policies must be compatible and complementary
with the Fisheries Settlement.
It is well understood that one iwi cannot treat on behalf of another iwi without
express mandate. This has implications for the process.
It is difficult to determine the effect on fishing (and therefore the impact on the
Settlement) but it is likely to be detrimental unless there is proper
consideration given to displacement and reduced catch levels.
It is not clear how much of each habitat and ecosystem type is enough to meet
the Protection Standard? Does the Biodiversity Strategy and MPA policy
target of 10% still apply or has this changed? Will this be uniformly applied to
each bioregion?
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Background and Context
9. MFish and DoC released the Marine Protected Areas Draft Classification and
Protection Standard consultation document in June 2007. This is the next stage
of the Government’s Marine Protected Areas (MPA) Policy implementation
programme aimed at protecting biodiversity. The Government’s original basis for
protecting biodiversity was New Zealand’s Biodiversity Strategy 2000. That
Strategy had the following objective:
“Protect a full range of natural habitats and ecosystems to effectively conserve
marine biodiversity, using a range of appropriate mechanisms, including legal
protection.”
10. The Biodiversity Strategy also contained the following priority action step:
“Achieve a target of protecting 10% of New Zealand’s marine environment by
2010 in view of establishing a network of representative protected marine
areas.”
11. The Government released a draft MPA Statement and Implementation Plan in
late 2004 to give effect to the objective and action above. When Te Ohu
Kaimoana submitted on that document in 2005 we disagreed with the approach
suggested and proposed a system that would still sufficiently protect biodiversity
but with less damaging effects on the Fisheries Settlement by using a structured
approach involving:
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development of an agreed classification system and appropriate
management units
risk assessment (involving the identification of biodiversity at risk) and
identification of management objectives targeted at addressing the
threats. Note: this is priority step 3.1 d) of the New Zealand’s Biodiversity
Strategy
use of a mix of targeted measures to address the risks/threats involving
choosing the best tools at the least cost (including the least impact on the
Fisheries Settlement) and
the application of an adaptive management approach that would monitor
and review measures to ensure that they were achieving biodiversity
protection objectives.
12. However, Government decided to follow the approach it proposed in the original
Draft MPA Policy Statement and Implementation Plan and not use a risk-based
and targeted approach to biodiversity protection. Its approach established the
following requirements:
 a consistent approach to classification of marine habitats and ecosystems
 mechanisms to co-ordinate a range of management tools including:
 a protection standard that will be used to assess whether individual
management tools or a combination of management tools provide
sufficient protection to a site for it to be designated as an MPA; and
 planning processes that enable a multi-agency approach to MPA
planning for both nearshore and offshore MPAs
 an Inventory to identify areas where MPAs are required
 a nationally consistent basis for planning and establishing new MPAs.
13. Government also decided its MPA Policy would require that in each bioregion:
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one sample of each habitat or ecosystem type would be protected by a
Marine Reserve, and
at least one replicate sample of each habitat or ecosystem type would be
protected with other controls (generally under the Fisheries Act)
Te Ohu Kaimoana’s Key Concerns
14. The requirements for one marine reserve and at least one replicate using other
controls were not included in the Governments Draft MPA Statement and
Implementation Plan consultation document that we and other stakeholders
commented on.
15. Making such decisions without them being adequately canvassed with submitters
raises questions about the adequacy of adherence to the High Court’s rules on
consultation1. To compound matters the implications of those decisions could not
be readily understood until subsequent steps in the MPA Policy implementation
are developed.
16. Arising from those decisions in the final MPA Policy are the following significant
issues:
 the classification would be critical for determining the size, scale and
number of MPAs (of which at least 50% are to become Marine Reserves)
 the standard would be critical for determining what tools could be used to
achieve protection (and hence what activities would be possible in an
MPA) and
 the process for identifying MPAs would have particular importance.
17. The current document sets out to address these significant issues. It is therefore
critically important that the document clearly informs readers by setting out:
 all the key elements of the document that need decisions
 what are the range of options for each, what are the reasons for and
against each of those options and what are the clear proposals and what
are the implications of those proposals
 in relation to further processes, who will make recommendations and
 who will make decisions and on what basis.
18. In this regard, given the earlier process Te Ohu Kaimoana has a number of key
concerns about the Marine Protected Areas Draft Classification and Protection
Standard consultation document.
The consultation process and document are inadequate and do not meet the
required standard for proper consultation
19. The High Court has noted that consultation should be a reality, not a charade.
Although there are no universal legal requirements as to form, the Court found
that essential elements of genuine consultation should include:
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sufficient information provided to the consulted party, so that they can
make intelligent and informed decisions
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sufficient time for both the participation of the consulted party and the
consideration of the advice given and
1
Air New Zealand Ltd v Wellington International Airport Ltd, High Court Wellington Registry, CP
403/91. McGechan J, 6 January 1992, p8.
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genuine consideration to that advice, including an open mind and
willingness to change.
20. We would therefore expect an appropriate consultation process to meet all of the
requirements set out by the High Court. A first requirement would be that any
document consulted on should be clear, unambiguous and able to be readily
understood by a moderately intelligent general reader rather than a specialist.
However, the MPA Draft Classification and Protection Standard document is
vague and difficult to interpret. Given this we consider that the consultation
document fails to meet the first of the reference points noted by the High Court
because:
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The document is far from easy to understand. This makes it difficult to make
intelligent and informed submissions. To do this requires submitters to make
efforts to gain greater clarity on the content and detail through contact with
officials. Without our insistence on additional meetings with officials we would
not have been able to determine what is proposed. Other stakeholders
should have been given the same opportunity to have such clarification given
the poor quality of the document. We are concerned that even though an
extension of time was allowed, many stakeholders are still not well informed
of the proposals and the potential consequences of the proposals on their
interests.
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The implementation processes to be followed subsequently are not made
clear to readers including their options to participate in those processes.
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A number of aspects in the document and subsequent processes appear to
be inconsistent with the Biodiversity Strategy and the MPA policy without
adequately explaining why that departure has occurred
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In some places there appears to be an unnecessary repeat of the contents
(see for example the Site identification and MPA design guidelines and the
site selection guidelines).
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The proposals and process are not clear or properly explained so that one
cannot draw logical inference from what has been said. For example, given
the range of guidelines provided what weight should be placed on each of the
factors included to ensure consistent decision-making and who should
determine that weighting?
21. Both MFish and DoC have employed a low key approach with minimal
communications or meetings arranged to explain the proposals. Again Te Ohu
Kaimoana considers that this approach has failed to meet the requirements for
sufficient time and information to enable intelligent and informed submissions.
The classification approach is not a credible way to identify and protect
different types of biodiversity
22. What is needed is a system of biodiversity protection that clearly identifies
biodiversity at risk and addresses those risks in such a way that it is:
 effective at protecting biodiversity, while
 not unnecessarily restricting existing users of the marine environment
(including fishing undertaken through the Quota Management System and
the Fisheries Act 1996).
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23. In our earlier submission on the MPA Policy Statement and Implementation Plan
2005 we carefully and succinctly laid out both substance and process that
needed to be followed to achieve effective biodiversity protection. That
submission remains relevant to this discussion and has been attached for your
consideration.
24. The key elements of our proposed system of protecting biodiversity include:
 Development of an agreed classification system and appropriate
management units.
 Risk assessment – Note : both these components are priority action
requirements set out in New Zealand’s Biodiversity Strategy under:
Objective 3.1: Improving our knowledge of coastal and marine
ecosystems
 Survey, assess, and map habitats and ecosystems important for
indigenous biodiversity and develop an agreed bioregional
classification system (based on a combination of biological,
geographical and social management criteria)
 Identify, assess, map and rank the threats to New Zealand’s
coastal and marine biodiversity.
 Identification of management objectives to manage those threats. In order
for measures to be properly monitored there needs to be agreed
management objectives to measure progress towards biodiversity
protection. Without measurable objectives there will be no way to
determine if we are making any progress towards biodiversity protection.
 Identification of the most appropriate tools, based on cost effectiveness,
efficiency and equity and
 Monitoring and review (including the need for contingency plans).
25. The Draft Classification System is an inadequate basis for identifying and
protecting biodiversity
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The overall objective of the MPA Policy is to:
“protect marine biodiversity by establishing a network of MPAs that is
comprehensive and representative of New Zealand’s marine habitats and
ecosystems.”
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The document however states (para 55, p 18) that the objective is to have a
comprehensive and representative network of MPAs – suggesting that MPAs
are an end in themselves not a tool to help protect biodiversity. This is an
important distinction when the proposed system of classification is not based
on biodiversity.
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The document proposes two different systems – one for near-shore
bioregions (using depth and substrate) and the other for deepwater (using the
Marine Environment Classification). We do not agree that there are
compelling reasons for the two systems. The document says that the MPA
policy states that the processes used to establish the MPA network will differ
in nearshore and offshore environments. While the process used may differ,
the MPA policy did not require that separate nearshore and offshore
classification approaches are used, as the document implies.
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For the nearshore the classification proposals use bioregions and physical
parameters (water depth and substrate types) as proxies for determining
different habitats (and therefore different biodiversity). This assumes that for
each of these combinations there will be different biodiversity and therefore
different habitats or ecosystem types. Given the scale of what is suggested in
terms of the number of habitats and degree of restrictions later proposed
through interpretation of the protection standard, this assumption must be
tested.
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Unlike our earlier submission this approach is not focused on identifying
biodiversity that is at risk and then addressing the problem by using targeted
management tools. The consequence of the overall approach is that fishing
activity will likely be excluded from areas :
 where we have no information on what the biodiversity is; or
 where it is not known whether fishing is causing sufficient harm to that
biodiversity for it to being failing to function in a healthily state; or
 where there are already measures elsewhere sufficiently protecting
that biodiversity.
26. Why not identify biodiversity?
 Page 14 discusses the differences between estuarine and marine
ecosystems that are further divided into 2-3 depth zones. These depth
zones are subsequently subdivided into substrate types and finally small
scale examples are provided. Clearly the approach taken uses proxies as
opposed to biological descriptions of biodiversity.
 If such proxies are to be used what method(s) will be employed to identify the
biodiversity within these classification units and what monitoring will be
undertaken to verify that the management measures are achieving the
objective of protecting biodiversity?
 We understand that seabed mapping is to be used but what biological
information will this mapping help identify? In this context we consider that it
would be more sensible (and is a fundamental requirement for the MPA
policy) to undertake a programme that progressively describes the
biodiversity within the habitats and ecosystems in each bioregion.
 Indeed Priority action 3.1 of New Zealand’s Biodiversity Strategy states:
“Survey, assess, and map habitats and ecosystems important for indigenous
biodiversity.” It therefore appears that the MPA approach taken has deviated
from the original New Zealand Biodiversity Strategy intent. The document
does not adequately explain why.
27. Why 13 bioregions?
 Paragraph 30 of the draft classification approach states:
“New Zealand has been divided into 13 coastal biogeographic regions… This
approach is based on the premise that similar physical habitats and
ecosystems, if separated by enough space (100 to 1000s of kms), will contain
different biological communities due to a combination of broad-scale factors.”
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 We consider that this approach is subjective and lacking in credibility. The
MPA policy states that a transparent process will be used to determine the
classification approach. When we attended the expert working group to
observe the development of the bioregional classification the experts
proposed 12 bioregions with no separation between the North and South of
the Cook Strait. Furthermore, even the experts felt that the boundaries
between the bioregions were fuzzy and not clear cut and had misgivings
about the use of bioregions. Given this we would like more clarity on who the
experts were that decided to promote 13 and not 12 bioregions and what
their scientific reasoning was for that decision?
 Our concern is that for each additional bioregion established, the document
implies that one marine reserve and at least one replicate habitat type will be
required for each of the potential 33 habitat types in each of the bioregion’s
MPAs. Taken together with the number of bioregions this could result in up
to 429 marine reserves and at least 429 replicates. This could have a
significant impact on fishing activities. While the guidelines in the document
propose to include multiple habitats within each MPA so as to have fewer
larger MPAs, the effect of this on fishers will likely be more significant as
fishers will be excluded from larger areas.
 With the classification approach taken we will have no way of determining at
the outset if in fact a habitat type in one bioregion differs substantially from a
habitat type in the next bioregion. The document notes that the approach is
based on a premise that ecosystems and habitats will be different where they
are separated by enough space. While this could be true at the scale of
100s or 1000s of kilometres it is unlikely to be at lesser scales. This means
that there will be no clear habitat separation at or close to the boundaries
between one bioregion and the next. There appears to be no requirement in
the processes to ensure that there is coordination of consideration regarding
MPAs close to the boundary of bioregions – without this coordination there
could be unnecessary duplication of MPAs.
 Other experience also suggests that the premise may not be true at larger
distances. Work by NIWA looking at biodiversity on seamounts over
considerable distances suggests that the variation is much smaller than had
been expected. On land concerns about similarities and differences in
habitats and biodiversity based on 268 ecological districts lead to a review
using a Land Environmental Classification. This reduced the number of
distinctive units to 75 showing that a number of the same units occurred in
different locations.
 Te Ohu Kaimoana recommends that officials reconsider the use of the MEC
system for classifying near-shore biodiversity. It provides a more consistent
basis for identifying similar habitats that occur in different regions and this
can then be used to coordinate where MPAS should be placed. It has the
advantages of
 providing a map at the time of analysis rather than progressively
through regional processes
 the map includes biological considerations.
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Officials’ interpretation of the protection standard when applied to fishing is
unduly restrictive
28. What is needed is a system that is squarely focused on identifying risks to
biodiversity and implementing effective measures that are capable of managing
those risks.
29. The document states that it interprets and applies the protection standard.
Section 4 is headed “The Protection Standard”. The document then states that
the protection standard is described in Planning Principle 2 of the MPA policy “To
meet the protection standard, a management tool must enable maintenance or
recovery of the site’s biological diversity at the habitat or ecosystem level to a
healthy functioning state. In particular, the management regime must provide for
the maintenance and recovery at the site of:
 physical features and biogenic structures that support biodiversity;
 ecological systems, natural species composition (including all life history
stages) and trophic linkages
 potential for biodiversity to adapt and recover in response to perturbation.
30. It is left to the reader to infer that the standard being used is
“the maintenance or recovery of the site’s biological diversity at the habitat or
ecosystem level to a healthy functioning state…” and this includes “maintenance
and recovery at the site of:
 physical features and biogenic structures that support biodiversity;
 ecological systems, natural species composition (including all life history
stages) and trophic linkages
 potential for biodiversity to adapt and recover in response to perturbation”.
31. It is notable that the description given indicates that the “management tool” must
enable this standard to be met. Much of the remainder of the document however
focuses on activities rather than the use of management methods to constrain
activities.
32. Stating the protection standard in the document does not make clear what its
implications are for activities. This can only be understood when the effect of
those activities is considered against the standard for the range of habitats and
ecosystems. The document notes this and has attempted to apply the protection
standard to a range of activities from human induced pollution, sedimentation,
through mining and prospecting and fishing.
33. For fishing the document acknowledges to the reader that fishing is managed
under the Fisheries Act. It notes that in setting the level of take of any species,
the Minister must ensure sustainability while providing for utilisation. Utilisation of
fisheries resources or ensuring sustainability requires the Minister to take into
account the following environmental principles in section 9 of the Fisheries Act:
 Associated or dependent species shall be maintained above a level that
ensures their long-term viability
 Biological diversity of the aquatic environment should be maintained
 Habitat of particular significance for fisheries management should be
protected.
The Minister must ensure that the system as a whole operates as the law
requires (ie to maintain biodiversity). The document then suggests that while
management at the QMA level is maintaining biodiversity, fishing activity could
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however mean the protection standard will not be met at the finer scale of
ecosystems and habitats.
34. It then proposes that for these finer scales the analysis (see paragraph 20-26 of
the document) should consider two major aspects:
 Managing the impact of fishing gear on the physical and biogenic
structures of the seafloor and
 Managing the impacts of biological extraction.
We note officials’ comments that the application of the protection standard will still
have to be considered on a case by case basis. However we consider the
document sets out an unduly restrictive interpretation of the protection standard.
We agree with SeaFIC’s submission that almost every MPA will become a Marine
Reserve in nature if not in name. Clearly this was not the intent of the MPA policy
or New Zealand’s Biodiversity Strategy as both documents acknowledge that
some level of extraction may continue within MPAs while still protecting
biodiversity.
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When looking at the impacts of fishing gear on the physical and biogenic
structures a table is presented that was developed in the United States of
America by an environmental organisation. It ranks various fishing methods
based on the relative level of impact. It does not do this for the range of
habitat and ecosystems identified in the classification approach implying that
for all habitats certain fishing activities will damage the seabed features and
biogenic structure.
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The document notes that bottom trawling, bottom pair trawling, dredging and
Danish Seining have the highest impact. It states as a blanket exclusion rule
that “it would be reasonable to assume that using these methods in virtually
any habitat or ecosystem would not provide for the maintenance or recovery
of physical features and biogenic structures that support biodiversity, as
required by the Protection Standard.”
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We do not consider that this is reasonable for these methods in all habitats.
For example, in boulder and bedrock habitats where damage to fishing gear
would cause operators to minimise that gear coming into contact; or where it
does, it having no significant effect on these habitat types. Another example
is in high energy zones nearshore where the natural mobility and disruption of
the habitat is likely to be the same as for a dredge. In these circumstances
the noted fishing activity will not pose a significant risk and the blanket
exclusion rule is not justified
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The document also fails to recognise that the standard must apply at the
ecosystem or habitat level, not just to particular sites. There is no
requirement that every part of an MPA be pristine. Rather the protection
standard must be achieved for the whole MPA. A healthy functioning state
could still be achieved with some level of fishing including interaction with the
seabed. This means that the areal spread of an activity needs to be
considered. The document does not require consideration of this. Its
absence suggests that officials consider that the methods cover substantial
areas of every habitat and ecosystem and that these are currently negatively
affecting the functioning of these ecosystems. But fishing occurs within
preferred pathways that may only touch on parts of an ecosystem allowing the
system to continue to function healthily as a whole. No evidence is provided
to suggest otherwise. Given this we consider that some of the document’s
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claims about fishing techniques are incorrect.
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We agree that fishing methods can have negative effects on benthic habitat
and that for some fishing methods significant restrictions are needed to
maintain biodiversity in some circumstances. We consider that each
circumstance should be assessed on a case by case basis rather than
applying the blanket exclusion rule without consideration of scale and intensity
of fishing, and extent of interaction with particular individual habitats.
Consideration also then needs to be given to what management tools will
manage the interaction so that the standard is achieved.
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When considering managing the impacts of biological extraction the
document’s proposed approach will mean that little fishing can occur within
any nearshore MPA. This is because
 the document states that its precautionary approach will be applied to
biological extraction. That approach considers that, with the difficulty
in providing specific management controls to effectively manage a
number of risk situations, all the less selective intensive fishing
methods (purse seining, Danish seining, midwater trawling, midwater
gillnetting and benthic netting) are inappropriate within a coastal MPA;
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Officials also propose that they will look closely at a number of other
factors to decide whether other methods of fishing (benthic longlining,
potting, pelagic longlining and hook and line fishing) remove
unacceptable volumes of biomass – if so they will be excluded also.
We are not aware of any situation where it can be shown that the ongoing
amount of extraction is resulting in ecosystems becoming dysfunctional.
Without such evidence we cannot agree with the statements that fishing at a
site would prevent the maintenance or recovery of biodiversity to a healthy
functioning state at the ecosystem or habitat level.
35. The application of the Protection Standard is not applied consistently to all
activities. It appears to be biased against fishing compared with other activities
that can damage biodiversity.
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The proposals take an uneven approach to fishing compared with other
activities in the marine environment that also have the potential to harm
biodiversity – such as mining and prospecting, pollution, harbour dredging etc.
For activities such as mining and prospecting etc it suggests that these are
discrete and MPAs that cover the range of habitats and ecosystems can still
be achieved if sited away from these activities.
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For fishing however the document proposes that in order to have MPAs,
fishing will need to be excluded from certain areas. Presumably this is
because the document notes the premise that fishing occurs over large areas
and officials consider that there is no ability to choose areas where there is
habitat but no fishing,
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While the document notes that, notwithstanding its general rules, each activity
will need to be assessed on a case by case basis the unevenness in
approach suggests that the other activities are accepted and valid and the
interests associated with these activities should be accommodated whereas
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fishing activities are not accepted as a valid use that should be
accommodated.
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This is highlighted by the inclusion of the statement that because renewable
sources of energy are important to our economy, MPAs sites should avoid
conflicting with possible energy generation projects. This compares with the
presumption that fishing should be excluded from MPAs even though it is one
of the country’s largest export earners and therefore also important to our
economy.

It is notable that the document considers that generally drilling for mineral
exploration or production may have limited impact on the seafloor and may be
acceptable in an MPA (para 80), that anchoring a mooring buoy, laying of
surface cables and driving of piles would generally be acceptable within an
MPA (para 87) but the use of pots will require consideration of the
vulnerability of habitats (para 134)
Subsequent MPA processes are inadequate
36. What is needed is both national co-ordinating and regional implementing systems
of consultation. These systems must both be open and transparent and allow
stakeholders who have interests in either the national or regional levels to
participate as they so choose.
37. The role of the national co-ordinating group will be to ensure that regional groups
are operating consistently across the country to clearly described guidelines and
analytical processes. The national group will establish the decision tools to be
used and the analysis to be undertaken at the regional level. It will provide clear
guidance on how the regional groups are to reconcile competing sets of interests
(including displacement and compensation interests) and check that the regional
groups have applied them consistently before forwarding the final
recommendations to the Ministers.
38. The role of the regional groups will be to undertake the analysis and apply the
guidelines at the regional level once these have been provided by the national
group.
39. With the proposed classification approach and the underlying presumptions in the
interpretation of the protection standard, Te Ohu Kaimoana considers the
ongoing processes for implementation to be critical. We are far from satisfied
with what the document provides and what officials have set it out in discussions.
40. The MPA policy requires a staged approach. The first stage (preparation for
implementation) requires a confirmed classification approach and protection
standard along with mapping of existing management tools (such as Marine
Reserves and existing fishing exclusion zones etc). The MPA policy notes that
the mapping of existing tools is to be made widely available and this work must
occur before the next stage proceeds. However we understand that this mapping
will not be made widely available but only be provided to each MPPF and there
will be no opportunity for peer review beyond the particular forum. We do not
agree with this - the information should be provided to all affected stakeholders
41. The MPA policy then sets out the next stage (Strategic analysis) to be:
 developing an inventory of MPAs by assessing those mapped management
tools against the protection standard and the classification approach.
14

using this, identify gaps in the MPA network and thus determine the priorities
for new MPAs.
The MPA policy notes that for efficiency and consistency these tasks would best
be completed across all biogeographic regions at the same time. It notes the
identification of gaps could be done nationally or regionally.
42. We understand however that officials propose that this work will not be done at
the same time – it will be done for each bioregion as they progress and only
provided to the MPPF. We do not agree with this. The opportunity for review of
this work should not just be available to participants in the MPPF – such a
process goes against the MPA policy that promotes inclusive processes for
tangata whenua user groups and the public. It is also regrettable that officials will
not carry out the strategic analysis across all bioregions at the same time. Such
an analysis would provide opportunity to avoid unnecessary duplication of
habitats within MPAs where there would be no greater biodiversity gains but
additional costs on fishers as well as an ability to fill the priority gaps where this
will minimise the adverse costs to user groups and on the Fisheries Settlement.
43. The document proposes that for the nearshore marine environment, regional
marine protection planning forums (MPPF) will be convened to :
 consider the classification and inventory information
 compile information on existing uses and interests in the area
 identify sites and potential tools for area-based protection of biodiversity
 seek to establish consensus on areas to be set aside as MPAs.
44. Paragraph 54 of the document notes that officials from DoC and MFish will
service the MPPF and provide information, advice, facilitation and guidance. This
will include provision of ecosystem and habitat maps, and information derived
using the classification approach.
45. We note that the document does not propose to include advice on application of
the protection standard even though the document notes earlier that this must be
applied on a case by case basis. It also does not propose that officials will
provide advice on measures – other than exclusion of fishing – that could be
applied to achieve the protection standard while still allowing some fishing – an
example might be catch spreading. We consider that consistent advice should be
offered on both these aspects.
46. As we understand it, it is intended that the MPPF make recommendations to the
Ministers of Conservation and Fisheries concerning the inclusion of new MPAs in
the network. These recommendations will be considered by Ministers along with
an assessment by officials of whether the proposals meet the requirements of the
policy. If MPAs based on these recommendations are to proceed they will then
be advanced using the legislated processes in the Marine Reserves Act and the
Fisheries Act. Each statute has its own criteria to be met along with public
consultation processes.
47. Given the role of MPPF, who will be on them and how will they make decisions?

While paragraph 52 of the document very briefly describes the establishment
of the MPA forums for the nearshore bioregions there is no information in the
document to clarify:
15




who will choose the people on the MPA forums or how they will be
chosen?
how will representation of all affected stakeholders be assured?
how will the mandates of individuals on the forum be tested to ensure that
they represent the interests of those they claim to represent?
what type of decision-making process and disputes resolution processes
will be followed?

The MPA Policy states:
“…Planning for offshore MPAs will be implemented at a national level, while
planning for nearshore MPAs will be implemented at a regional level. Both
the nearshore and the offshore processes will be designed to allow for
constructive engagement with tangata whenua, user groups, and the public to
ensure that MPA planning is inclusive, without compromising biodiversity
protection objectives. Both processes will be underpinned by a commitment
to minimise the adverse impacts of new MPAs on existing users of the marine
environment and Treaty settlement obligations.”

Despite this statement our experience has been exclusion. Te Ohu
Kaimoana made a specific request to attend the developing West Coast MPA
Forum and give a presentation on the interests of all iwi whose quota interests
may be impacted upon by their deliberations. Our request was denied and
yet the MPA forum continues to advance their work on furthering the MPA
policy and implementation programme of work.

We note also that New Zealand’s Biodiversity Strategy objective 7.3 and
action a) under the heading Treaty of Waitangi claims settlement processes
requires the Government to:
“Monitor Treaty settlements and ensure Treaty settlement provisions and
biodiversity management policies are compatible and complementary.”
Marine reserves by law exclude all fishing – recreational, commercial and
customary non-commercial. The Fisheries Settlement was stated to be a full
and final settlement of Iwi/Maori rights to fishing – it provided both commercial
and non-commercial rights. The extinguishment of such treaty rights is not a
matter that can be advanced simply given the Government’s responsibility to
provide active protection to such settlements. As part of this, the Minister of
Fisheries must give concurrence to any proposal by the Minister of
Conservation to create a marine reserve under the Marine Reserves Act. In
treaty matters, it is also well recognised that one iwi cannot speak for another.
These issues have implications for the make-up of the MPPF membership
and its processes along with any subsequent process. Given the scale of the
bioregions, special processes will need to be developed to ensure that Iwi
and hapu concerns are thoroughly canvassed and well understood by all
decision-makers.
48. We consider that robust analysis and decision tools are missing leaving us
uncertain of how decisions will be made and what the likely effect will be.

The process for decision-making by the MPPF is not clear. In particular the
consultation document does not explain how robust analysis will be
incorporated or applied in making decisions. While guidelines for the MPA
forums are discussed there is no explanation of how they are to be applied to
16
achieve national co-ordination, consistency and fairness when applied by
regional forums.

We note on pages 18 to 21 of the classification approach that there are a
number of “guidelines” that the forums are to follow in coming to decisions
about which habitats and ecosystems should be recommended to become
MPAs. These guidelines are vague and provide no assurance that decisions
will be made on a nationally consistent basis or in a structured and rational
manner when applied in regional forums. We consider that the lack of a clear
and rational basis for decision-making will result in conflict.
The potential effects on the Fisheries Settlement are not clear but looks to be
detrimental – the size of the impact on the Settlement will be directly related to
the overall level of exclusion of fishing by MPAs
49. What is needed is a means of evaluating the potential effects of MPAs on the
Fisheries Settlement. This should include analysis of fishing displacement – both
from a commercial point of view and also from a customary non-commercial one.
Subsequent to that a means of determining the relative loss is needed. Once the
value of the loss is determined then both the regional and national forums will
have factual information upon which to base their decisions. Any decision taken
that result in a devaluation of the fisheries settlement can then be based on
factual information and compensation can be offered commensurate with the
anticipated loss.
50. The effect on fishing is difficult to determine but is likely to be detrimental without
proper consideration of displacement or catch levels

The effect of increasing the number and size of Marine Reserves and the
extent and degree of fishing restrictions will be to either:
 displace fishing effort (and thereby increase costs if the same level of
catch is possible) or
 reduce catch (by effectively excluding fishing from current fishing zones
and the same level of catch is not possible in remaining areas – this
applies for many sessile species ).

Both of these results will erode the value of the Fisheries Settlement from both
a commercial point of view and from a customary non-commercial one.

We agree with SeaFIC’s submission that almost every MPA will become a
Marine Reserve in nature if not in name. In addition, we agree that the unduly
harsh impact on commercial fishing is inconsistent with the original intent of
New Zealand’s Biodiversity Strategy and with the original intent of the MPA
Policy.
51. The document does not give an indication of how much of each habitat or
ecosystem type will be enough to meet the Protection Standard requirements.

While the number and size of MPAs is likely to have a significant impact on
fishers’ access there is scant information provided in the document to clarify:
 How much of each habitat type must be included in a MPA? What
constitutes a representative amount that needs to be protected?
 How many duplicate or replicate ecosystem or habitat sites are enough to
meet the protection standard?
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

If one MPA has two or more habitats of the same type within its
boundaries will this be sufficient to meet the replicate requirement?
Is the Biodiversity Strategy and MPA Policy target of 10% still the overall
goal or is there now a larger percentage being sought? If 10% nationally
remains the goal, does this translate into a target of 10% of each
bioregion?
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Appendix 1.
Summary of Proposals
The Marine Protected Areas Draft Classification and Protection Standard document
progresses the development of the Governments MPA Policy and Implementation
Plan (2005). It provides stakeholders with an opportunity to comment on:
1. A proposed Classification Approach to MPA planning with separate inshore and
deepwater classifications:

The inshore classification proposes 13 inshore bioregions around the
mainland and offshore island of New Zealand. Within each bioregion habitats
and ecosystems are to be protected. These are to be identified by overlaying
depth and substrate type. Within each bioregion up to 33 habitat types will be
identified and tagged for MPA “protection”.

A separate deepwater bioregional classification. Investigation into the
number and description of bioregions, ecosystems and habitat types will
continue but implementation for this is not expected until after 2013.
2. A Protection Standard is proposed to achieve the outcome of maintenance or
recovery of an MPA site’s biological diversity at the habitat and ecosystem level
to a healthy functioning state. This includes:
 physical features and biogenic structures that support biodiversity
 ecological systems, natural species compositions (including all life-history
stages), and tropic linkages
 potential for biodiversity to adapt and recover in response to perturbation.
The standard is described as the “point at which the combined effects of all stressors
on the ecosystem or habitat move from being acceptable to unacceptable or
adverse”. To achieve this standard it may require the avoidance of change from
human induced pollution, sedimentation, fishing, tourism or visitor based
disturbance, undersea or seafloor commercial activities, or scientific/research
activities. However the selection of tools for the management regime will require
assessing their ability to address such human-related threats and activities.
Summary of the Process
Implementation of the MPA Policy will follow a staged approach involving:
Stage One: Preparation for Implementation
(a) Development of the Classification and Protection Standard by central
government (being consulted on in this document).
(b) Mapping (yet to be produced) of existing management tools such as Marine
Reserves and existing fishing exclusion zones etc. The mapping of existing tools
is to be made widely available.
(c) These components can occur concurrently. However, they must be completed
before Stage Two can commence in any region.
Stage Two: Strategic Analysis
(a) An Inventory of MPAs will be developed by assessing the management tools
identified and mapped against the protection standard.
(b) These MPAs will then be assessed against the classification approach to identify
gaps in the MPA network.
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(c) Priorities for new MPAs can then be determined based on the principles of the
MPA Policy.
(d) Identifying and assessing new MPAs will be undertaken by MPA forums to be
established for each of the bioregions. These forums will be serviced by DoC
and MFish officials and tasked to:
 consider the classification and inventory information
 compile information on existing uses and interests in the area
 identify sites and potential tools for area-based protection of biodiversity
 seek to establish consensus on areas to be set aside as MPAs and
 make recommendations to the Ministers of Conservation and Fisheries
concerning the inclusion of new MPAs in the network.
(e) MPA forums will consider both “required” and “desirable” habitats to be
recommended for inclusion in the MPA network. While the forums will initially set
out to recommend only the required habitats they may also recommend
desirable habitats where they increase the biodiversity value of the MPA
network. However, protecting additional desirable habitats would be subject to
the various requirements of the MPA Policy.
(f) The MPA forums will be provided with three-four2 categories of guidelines to plan
a representative network of MPAs including:
 MPA policy “priority” guidelines
 Site identification and MPA design guidelines and
 Site selection guidelines
(g) MPA forums will apply the Protection Standard in the following ways:
 Application to non-fishing activities
 Avoid areas where there is pollution, sedimentation, renewable energy
projects and harbour dredging
 Drilling, mining and prospecting may be appropriate depending on
scale
 Anchoring of buoys, laying of cables, driving of piles, tourism and
scientific research are all generally acceptable

Application to fishing activities will occur in two ways:
 Managing the impacts of fishing on the structures on the seafloor.
Fishing methods will be ranked according to their potential impacts as
follows:
 Bottom trawling, dredging, Danish seine – very high impact and
therefore not appropriate in an MPA
 Gillnets, pots – medium impact and therefore may be appropriate
in an MPA
 Other methods – low impact and therefore probably acceptable in
an MPA
 Managing impacts of fishing on biological extractions will focus on
species that are immobile or have high site fidelity and applying a
precautionary approach including where:
 Fishing occurs in depths of less than 200m and below 1800m
 Intensive fishing methods are used (including – purse seining,
Danish seining, midwater trawling, midwater gillnetting and benthic
netting) and
 Fishing methods are used frequently and take high volumes of
fish.
Stage Three: Statutory Application and Consideration
2
See the full list of guidelines in Appendix 2 of this submission.
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


Ministers with officials will then assess whether the recommended proposals
satisfactorily achieve the desired range of protection.
Their consideration will also need to address broader impacts on existing
users including impacts on the Fisheries Settlement.
If the recommendations are accepted, each proposal will then be progressed
through the statutory processes of either Marine Reserves Act for marine
reserves or the Fisheries Act for the imposition of any additional controls
under the Fisheries Act. This will then provide further opportunity for
submissions from stakeholders.
Stage Four: Implementation in the Deepwater (12 to 200 nautical miles)
 Implementation of the MPA policy in the deepwater has been delayed until
2013. This timing arises from the agreement with the fishing industry to
protect the biodiversity of more than 30% of the Exclusive Economic Zone in
Benthic Protected Areas (BPAs).
 In the mean time Central Government will work on developing bioregions
within which ecosystems and habitats will be identified for inclusion in the
deepwater network.
 Planning for deepwater MPAs will be implemented at the national level by an
expert offshore panel. This group will have specific expertise and
representation of offshore interests.
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Appendix 2.
Guidelines discussed in the Draft Classification and Protection Standard
consultation document
1. MPA policy “priority” guidelines on the use of the classification to
represent marine habitats and ecosystems:




Representativeness – sites be prioritised on the basis that they are
representative of one or more marine habitats or ecosystems. Each MPA
will contain a number of habitats and ecosystems types.
International or national importance – site be prioritised on the basis
that they support outstanding, rare, distinctive or internationally or
nationally important marine habitats or ecosystems.
Network gaps and priority habitat and ecosystems – the classification
should be used to identify gaps and set priorities for representation of
habitats and ecosystems within MPAs.
Required versus Desirable – The consultation document proposes that
habitats in the classifications be separated into those that are required to
be protected and those that would be desirable to be protected in the
MPA network. Refer to table 2 for those required in the inshore
classification. The deepwater required habitats are yet to be determined.
Additional habitats may be included to add “biodiversity value” but these
would be subject to MPA requirements.
2. Site Identification and MPA Design Guidelines
Sites identified using these criteria will be subject to the site selection
guidelines (below) to determine which will be progressed through relevant
statutory processes. Considerations are:
 Variation in exposure (water movement- i.e. wave, tidal, currants)
 Protect whole habitats and ecosystems
 Have fewer larger (versus numerous smaller) MPAs
 Size should be sufficient to maintain populations and reduce edge effects
resulting from human use of surrounding areas
 Choose MPAs that include difference both latitudinal and longitudinal
or cross-shelf ranges (i.e. extend MPAs from the intertidal zone to deep
waters)
 Choose areas adjacent to existing terrestrial reserves such as
national parks
 Keep boundaries simple – use straight lines, make squares, use
coordinates or use fixed objects and sight lines on-shore as alternatives
3. Site Selection Guidelines
It is proposed that these guidelines be used to select which MPA sites should
be recommended for protection. Consider them in the context of the
classifications and include:
 Protect a full range of marine habitats and ecosystems as well as those
which are rare, distinctive or internationally or nationally important
 Number of MPAs - multiple habitats should be protected within each
MPA - The number of habitats in the classification does not equate to the
number of MPAs required.
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






Have fewer larger (versus numerous smaller) MPAs
Social and economic interests - minimise adverse impacts on existing
users – consider social and economic interests of existing users including
current and potential use for both extraction or exploration or contribution
to economic or intrinsic value by virtue of its protection.
Susceptibility to degradation – avoid sites that may be degraded
Cultural use – consider information on traditional use, values current
economic value and Treaty settlement obligations.
Adverse impacts on users – where there is a choice of two or more
habitat or ecosystems – choose the sites that would minimise the impact
on existing users. Where there is a choice consider accessibility for
management and enforcement and benefits such as educational, diving
and tourism opportunities
Compatibility with adjacent land use- aligns with other with other
protected areas on land or at sea.
Replication – provide replication of protected habitats and ecosystems in
each bioregion.
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