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Use and Development in the Southland Coastal Marine Area: Discussion Document

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Use and Development in the Southland Coastal Marine Area: Discussion Document Use and Development in the Southland Coastal Marine Area: Discussion Document Purpose 1. The purpose of this document is to generate discussion on significant issues with use and development in the Southland coastal marine area (CMA).1 The discussion document: outlines the regulatory requirements for managing use and development in the Southland CMA; highlights the importance of the CMA to tangata whenua; summarises values associated with the CMA; provides a brief overview of use and development in the CMA; discusses significant issues with current use and development; and seeks feedback from stakeholders on the issues raised. Introduction 2. Southland’s coastline is 3,400 kilometres long, which is the longest of any region in New Zealand. Historically, the coast has been very important to Southland, providing food for early Māori and European settlers, creating trade opportunities (sealing, whaling, and fishing), and enabling transport of Southland produce (including meat, wool, and dairy products) overseas. 3. Today, Southlanders’ connection to the coast remains significant, with 54 percent of the population (approximately 50,000 people) living within five kilometres of the sea.2 The Southland CMA is valued for a variety of reasons including recreation (such as swimming, surfing, and boating) commercial purposes (for example, fishing and aquaculture), and to house critical infrastructure (such as port facilities). 4. For the purposes of this paper, Southland’s CMA has been be divided into three smaller areas with broadly similar characteristics; Southern Southland, Fiordland, and Stewart Island. 5. The Fiordland coastline is largely unmodified with outstanding natural character. There is a small area of development at the head of Milford Sound that primarily services the tourist industry. The principal issue with use and development in Fiordland is the high volume of tourism occurring in the fiords. Right: Breaksea Sound (Shaun Cunningham) 1 The outer CMA boundary is the edge of New Zealand’s territorial sea, at 12 nautical miles from shore, while the landward boundary is the average spring tide high water mark, known as Mean High Water Springs. 2 2006 Census data. http://archive.stats.govt.nz/browse_for_stats/population/Migration/internal-migration/are-nzs-living- closer-to-coast.aspx 1 6. The Southern coastline consists of a mix of sandy/pebble beaches and rocky outcrops, and is dotted with townships from Colac Bay to Curio Bay. The most significant structures along the coast are wharves. These range in size and impact from the Bluff Island Harbour wharves, located on 40 hectares of reclaimed land, to the single wharf at Waikawa used occasionally by fishing boats. Although a broad range of activities occur along the coastline, Environment Southland is not currently aware of any significant issues associated with use and development in the Southern coastline. 7. Stewart Island, the third largest island in New Zealand, is dominated by unmodified outstanding coastal landscapes popular with walkers and tourists. There is a small township, Oban, in Halfmoon Bay. The main development in Stewart Island’s CMA is the infrastructure associated with the aquaculture industry in Big Glory Bay, and various wharves at Halfmoon Bay, Golden Bay and Ulva Island. An issue has arisen in recent years with the establishment of shark cage diving off Stewart Island. Concerns have been raised about the potential conflict with other uses of the CMA, such commercial pāua diving. Regulatory context 8. The following section provides an overview of the regulatory requirements and documents that are relevant to the management of use and development in the Southland CMA. Resource Management Act 1991 9. The Resource Management Act 1991 (RMA) requires the sustainable management of natural and physical resources, that enables people to provide for their social, economic, and cultural wellbeing and their health and safety. Under the Act, the preservation of the natural character of the coastal environment, and the protection of outstanding natural features and landscapes, are matters of national importance (section 6) and must be provided for in the management of the coast. 10. The relationship between the RMA and the Fisheries Act 1996 was recently considered in the High Court.3 The Judge held that regional councils can impose controls over fishing to manage the effects or externalities of fishing that are not already subject to a Fisheries Act control. However, the Judge commented that the ability of regional councils to provide for matters not controlled under the Fisheries Act “does not open the door to carte blanche regional council regulation of the adverse effects of fishing on the aquatic environment”. Instead, the legality of control in disputed areas will need to be worked out “at the finer grain” through the plan-making process.4 11. Therefore, as the case law currently stands, the RMA could be used to control the effects of fishing that are not already managed by the Fisheries Act. However, the nature of the controls and how they may be applied is still to be determined. In addition, the High Court’s decision is being appealed by the Attorney-General (discussed later in this paper). Marine and Coastal Area (Takutai Moana) Act 2011 12. The Marine and Coastal Area (Takutai Moana) Act 2011 creates a new regime for recognising and providing for the interests of New Zealanders in the CMA. 3 Attorney-General v Trustees of the Motiti Rohe Moana Trust [2017] NZHC 1429 and [2017] NZHC 1886 4 Ibid and https://www.russellmcveagh.com/insights/august-2017/resource-management-update-august-2017 2 13. Three types of customary interests are recognised under the Act: participation in conservation processes; protected customary rights; and customary marine titles.5 To date, only one application for a customary marine title has been granted in New Zealand, to Rakiura Māori. Right: The Customary Marine Title for Rakiura Māori applies to a small 200m landing area which provides the only access to Pohowaitai and Tamaitemioka Islands (part of the Muttonbird Islands), located to the south west of Stewart Island. 14. Five additional applications to recognise customary rights in Southland have been submitted to the High Court. Two apply to the Ruapuke Island group, and the other three apply to the entire Southland CMA. These will be processed by the Court, along with over 150 applications nationwide, in the coming years. 15. Under the Act, resource consent applicants are required to notify and ‘seek the views’ of customary marine title applicants before lodging a consent application. The views of the customary marine title applicants are relevant to the assessment of the environmental effects, and may be considered by Council in deciding whether or not to grant the resource consent. 16. In general, the recognition of customary rights does not provide the customary right holder with the ability to exclude the public from the area covered by the customary right. However, customary marine title applicants may seek to include recognition of a wāhi tapu (a sacred place), which potentially could restrict public access to a particular area depending on the prohibitions or restrictions applied for in the customary marine title. Fiordland (Te Moana o Atawhenua) Marine Management Act 2005 17. The Fiordland (Te Moana o Atawhenua) Marine Management Act 2005 recognises the Fiordland marine area’s national and international importance, unique marine environment, distinctive biological diversity, and outstanding landscapes and cultural heritage. 18. The Act was part of the Government’s response to the Fiordland Marine Conservation Strategy (2003),6 which promoted a new approach to protecting the Fiordland marine environment through collaboration and integrated management. 5 Participation in conservation processes – enhanced participation by tangata whenua in processes run by DOC. Protected customary rights – an activity, use or practice that has been exercised in accordance with tikanga since 1840, and continues to be exercised in a particular part of the common marine and coastal area, in one way or another. Customary marine title – means a customary interest in land with rights similar to freehold ownership, but cannot be sold. 6 The Strategy was developed by the Guardians of Fiordland, a group of local Fiordland users and community representatives concerned about the escalating pressures on the Fiordland Marine Area. 3 19. The Fiordland (Te Moana o Atawhenua) Marine Management Act: establishes the Fiordland Marine Area and eight7 marine reserves in the area; implements measures to help preserve, protect, and sustainably manage the area; establishes the Fiordland Marine Guardians to provide advice on managing the area; promotes co-operation between the Guardians and management agencies; and acknowledges the importance of kaitiakitanga. From left to right: Snakestar on black coral, brachiopods, and red coral in Fiordland (Department of Conservation) 20. At the same time, the Government: amended fisheries regulations for non-commercial harvesting in Fiordland; excluded commercial fishing from large areas of the internal waters of Fiordland; and implemented a range of other non-legislative methods, such as developing biosecurity measures to keep marine pests out of Fiordland. 21. Schedule 12 of the Act made several amendments to the Coastal Plan to reflect the changes brought about by the legislation, including: recognising the Fiordland Marine Guardians; providing
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