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 2 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 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 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 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. 3 Subsequent MPA processes are inadequate 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 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? 4 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: 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: 5 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: sufficient information provided to the consulted party, so that they can make intelligent and informed decisions 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. 6 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: 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. The implementation processes to be followed subsequently are not made clear to readers including their options to participate in those processes. 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 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). 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). 7 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 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.” 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. 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. 8 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. 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.” 9 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. 10 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 11 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. 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. 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.” 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 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 12 claims about fishing techniques are incorrect. 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. 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; 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. 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. 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, 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 13 fishing activities are not accepted as a valid use that should be accommodated. 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? 17 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? 18 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. 19 (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. 20 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. 21 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. 22 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. 23