Mahvash Ikram
Conservation Minister Tama Potaka has doubled down on plans to rewrite parts of the Conservation Act 1987 in the face of critics who claim the move is a “power grab” which places too much control in the hands of one politician – the Minister of Conservation.
In an interview with LawNews following a lunch hosted by The Law Association late last month, Potaka said the current law was outdated, ambiguous and unfit for purpose when those wanting to carry out commercial or private activities on the conservation estate had to navigate “excessive bureaucracy” and long wait times to obtain permission, known as concessions.
Potaka is proposing a new, streamlined framework for approving economic activity on conservation land and faster processing of applications. It would be easier to transfer concessions between organisations and the new framework would codify what was required to give effect to the principles of the Treaty of Waitangi under s 4 of the Conservation Act.
“I’ve got people who have waited years for a concession to be processed – not months, but years,” he said. “And we can’t have that. We’re going to change the law to better reflect and better clarify how you can do things on the conservation estate”. He said a streamlined National Conservation Policy Statement (NCPS) and area plans would replace the existing system, which was plagued by a hierarchy of laws, plans and strategies.
The critics
Conservation Minister Tama Potaka
In the other corner are advocacy groups, warning that Potaka’s proposed changes will sideline the democratic process by concentrating too much power in the hands the minister, who would have sole decision-making authority on conservation estate matters and would prioritise economic gain.
“We acknowledge the new proposal is a lot simpler, but the headline problem is the minister gets to decide everything,” says lawyer Allan Brent, a board member of the Federated Mountain Clubs (FMC).
Brent said FMC also acknowledged these were tough economic times, but the conservation estate – comprising about a third of New Zealand – was public property and it was not the government’s role to decide how it would be used. He said FMC understood Potaka wanted to promote certainty for commercial operators, but he added “you cannot get certainty if you give the minister sole power because governments change and [under the new law] things [will] swing around too much [in the long term]”.
Brent said the New Zealand Conservation Authority (NZCA) and local conservation boards (comprising government and iwi representatives and members of the public) currently had approving authority and the FMC had statutory power to nominate members to the authority, but under the new regime the two bodies will be downgraded to provide an advisory role to the minister. FMC viewed that as “undemocratic”, Brent said.
Potaka points out, however that the matter has already been subject to public consultation and his proposed Conservation Act (Land Management) Amendment Bill will go through the usual select committee process where interested parties will have another opportunity to make their case.
And, he says, not everything is changing. “[It] doesn’t mean we get rid of all the environmental protections and bonding of tourism concessions, not at all. But it does mean we’re going to make it easier to do things with very clear targets around timeframes to process concession applications.”
Concessions backlog
A cabinet paper, released by Potaka last month, describes the current concession process as too rigid, too slow and too uncertain for most applicants. It is a one-size-fits-all process that “inhibits modern regulatory approaches, even for low-risk and largely similar activities”. There was also “ongoing ambiguity” about how to apply the principles of the treaty when it came to processing applications and decision-making, the cabinet paper said.
Concessions are currently issued by the Minister of Conservation under a hierarchy of laws and plans with the Conservation Act being the overarching legal framework. For example, the Conservation General Policy and the General Policy for National Parks are used to create strategies which have not been substantially amended since 2005, according to the cabinet paper.
There are more than 100 statutory planning documents of which about 80% are outdated. Figures from May this year have showed 800 permission applications were in the pipeline and 15% were more than a year old.
Entry fees
Potaka said while the Department of Conservation (DOC) was responsible for 30% of the land in New Zealand, it received only $500 million in this year’s Budget.
To help fund DOC, the government last month said foreign tourists – excluding those from Australia and the Pacific Islands – would be charged a small fee to visit high-volume sites. From 2027, between $20 and $40 per person will be levied, initially at Cathedral Cove, the Tongariro Crossing, Milford Sound and Aoraki Mount Cook. This will generate an estimated $62m annually which will be re-invested in the sector.
Advocacy group Forest & Bird said it was concerned that charging fees at the iconic natural attractions would open a can of worms. In a submission made in February, it argued that charging entry fees would also raise visitor expectations.
“If people are paying for access, they may anticipate increased levels of service such as well-maintained or sealed car parks, enhanced car-park safety, modern restroom facilities and wider or more accessible tracks. DOC would need to manage these expectations carefully to prevent the need for significant infrastructure upgrades and facilities that do not align with the natural and undeveloped nature of conservation areas.”
Forest & Bird was also concerned that a significant portion of the fees would be allocated to administration costs as DOC staff carried out compliance and enforcement in addition to their regular duties.
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