CATHEDRAL COVE/MERCURY BAY MARINE RESERVE
By Nicola Ngawati, LL.B.
This report was commissioned by the Waitangi Tribunal for the Cathedral Cove/Mercury Bay Marine Reserve Claim.
Any conclusions drawn or opinions expressed are those of the author. -1-
1 Note about the Author
My name is Nicola Ngawati. I am counsel on the record for the claimant and
also the claimant's daughter. I completed my Bachelor of Laws at Auckland
University in 1989 and am currently enrolled in the Masters of Public Policy
degree programme at Victoria University. I was commissioned by the Waitangi
Tribunal to prepare a background research report summarising the events
leading to the establishment of the Cathedral Cove/Mercury Bay Marine
Reserve (hereinafter referred to as "the Reserve") pursuant to clause 5A(1) of
the Second Schedule of the Treaty of Waitangi Act 1975 on 4 August 1994.
In addition to summarising the background of this claim I was asked to outline
the appropriate Crown pOlicies, legislative authority and departmental
procedures. 1
2 Introduction
This report outlines the establishment of the Te Whanganui-a-Hei Marine
Reserve (Cathedral Cove/Mercury Bay) in the Coromandel Peninsula.
Mr William Alexander Ngawati of Hahei, Coromandel Peninsula has lodged a
claim to the Tribunal objecting to the Crown's proposal and events leading up
to the establishment of this reserve. The claimant states that he has been
denied full exclusive and undisturbed possession of the fisheries at Cathedral
1 Direction Commissioning Research, Appendix 1 -2-
Cove/Mercury Bay which he desires to retain the use of and has been fishing in the area for the past thirty years.
The claim therefore concerns an individual Maori as opposed to an iwi or group.
The claimant alleges that the acts done in furtherance of the marine reserve proposal by the officers/agents of the Department of Conservation and the relevant legislation are contrary and inconsistent with the Treaty of Waitangi
1840.
This report will examine the events leading up to the establishment of the reserve, the legislative authorities and background to the application. The procedures followed by DOC will be examined in length.
The current situation is that the Te Whanganui-a-Hei reserve was opened by the Minister of Conservation, Mr Dennis Marshall on 17 April 1993.
Information for this report has been supplied by the claimant, Department of
Conservation, Waikato (Tony Roxburgh), Ministry of Agriculture and Fisheries,
Auckland (Bob Drey), Mary Bowers, land owner at Hahei, Charlie Harsant, resident of Hehei, Charlie Tennent, land owner at Hahei. -3-
It should be noted that not all available information on the establishment of the
reserve has been accessed for reasons of relevance and also time constraints.
3 The Claim
On 11 December 1992 the Waitangi Tribunal received a claim from William
Alexander Ngawati under the Treaty of Waitangi Act 1975.2
The claim relates to the establishment of a marine reserve at Cathedral
Cove/Mercury Bay in the Coromandel. The claimant alleges that he has been
prejudicially affected by events leading up to the establishment of the Reserve.
In particular, the original proposal by the Director-General of the Department
of Conservation in 1990 that a marine reserve be established in the area, the
acts done in furtherance of this proposal to create a marine reserve in terms
of the Marine Reserves Act 1971 by the officers/agents of the Department of
Conservation, by the act of the Crown requesting that the Governor-General
authorise an Order-in-Council finalising the proposed reserve, the legislative
policies of the Crown, in particular the Marine Reserves Act 1975, the
Conservation Act 1977 and the regulations of the Crown concerning the Marine
Reserves Act 1975 and the Conservation Act 1977.
The claimant has alleged that these legislative policies, regulations and acts of
the Crown upon which the reserve was established, are contrary and
2 Statement of Claim, WAI 326, from William Alexander Ngawati, Ngapuhi, dated 11 December 1992 (copy attached as Appendix 2) -3-
inconsistent with the two texts and principles of the Treaty of Waitangi 1840.
The claimant further alleges that there was inadequate consultation with the
Tangata Whenua/Maori (including himself personally) by the Department of
Conservation and its agents.
The claimant became aware of the proposed reserve when he was shown a
copy of a pamphlet produced by DOC entitled "Let's Look to the Future. Hahei
Marine Reserve."3 This pamphlet also contained a locality plan showing the
proposed marine reserve and stated that:
"There is public support for creating a marine reserve network on the Coromandel Peninsula. This was evident after discussions with many groups in the community, including the Tangata Whenua, commercial fishers and local residents and reinforced by last year's public questionnaire which indicated a preference for a first reserve in the HaheilCooks Beach Area."
The pamphlet also notified that four public meetings were to be held to discuss
the issue of the proposed reserve.
4 Location
The area of sea identified in the proposal for the marine reserve is generally
within the boundary created by a line drawn from the eastern end of Cooks
Beach north to Motukorure Island, east to the northern end of Mahurangi
Island, westerly to the western end of Hahei Beach and westerly again along
3 Let's Look to the Future, Hahei Marine Reserve Pamphlet, Appendix 3 -4-
the shoreline to the starting point. 4 From the date the original proposal was put
forward the boundaries of the reserve have been altered a number of times
before the final boundaries were decided 5. The area of sea is off the eastern
coast of the Coromandel Peninsula.
4.1 Cathedral Cove Recreational Reserve Management Plan
A management plan was prepared in 1983 in terms of section 41 of the
Reserves Act 1977 and was concerned with the setting of objectives and
policies for the long term management of the Cathedral Cove Recreation
Reserve. The plan established a framework of policies for the management of
the reserve. 6
This plan is relevant in the context of considering whether any reference was
made to fishing, in the management plan.
The relevant sections of the plan, refer to the beaches and headlands being
used by fishers, but the primary management objective of the plan refers to
"protecting and enhancing the existing character and natural amenity of
Cathedral Cove Recreation Reserve, to reinforce the recreational value of the
4 Supra note 2, paragraph 7.
5 Copy of final boundaries of reserve, attached as Appendix 5
6 Cathedral Cove Recreational Reserve Management Plan, Department of Lands and Survey 1983. -5-
area for the use, benefit and enjoyment of both present and future generations
of the public". There is no specific reference to fishing. 7
Under the section "Management Policies", sub-section Public Use, the plan
states that, "forms of recreation acceptable in the reserve are those which are
primarily resource orientated in character and require only low key facility
development." Under "Implementation", reference is made to "the reserve
being managed as a low key recreational area calling for mainly picnicking,
walking and associated activities such as photography ... and beach related
recreational activities such as fishing and swimming."s
The Department of Conservation (hereinafter referred to as "DOC") interpreted
these sections of the plan as meaning that the reserve plan should only be
concerned with providing access to the coastal zone "given that "fishing" is
generally undertaken in the tidal zone outside the reserve boundary."g
5 Background
In 1969 Mr 0 V Harsant of Hahei gifted to New Zealand as reserve, an area
of 33 hectares which together with the adjacent coastal strip of Crown land
became the Cathedral Cove Recreation Reserve.
7 Supra note 6, page 15.
S Supra, note 6 page 19.
9 Memo to Director-General, Head Office, to Murray Grant MSU, from Tony Roxburgh dated 1 August 1992, attached Appendix 9. -6-
6 Original Proposal
On 15 September 1990 the Director-General of Conservation, Mr Bill Mansfield
advertised a notice of intention to apply for an Order-in-Council to create a
reserve at Cathedral Cove. 10
In considering this proposal, I will consider the statutory and departmental
processes followed by both the Department of Conservation and the Ministry
of Agriculture and Fisheries prior to this notice being placed, the consultation
process and subsequent events.
7 Legislative Authority
Marine Reserves Act 1971
The long title of the Marine Reserves Act 1971 (hereinafter referred to as the
"MRA") provides:
"An Act to provide for the setting up and management of areas of the sea and foreshore as marine reserves for the purpose of preserving them in their natural state as the habitat of marine life for scientific study. "
Section 5 of the MRA sets out the procedure for declaring a marine reserve as
follows:
10 Copy of Notice attached as Appendix 10. -7-
It. section 5(1)(a) specifies who can apply to the Director-General of Conservation for an Order in Council declaring an area to be a marine reserve. The Director-General can be an applicant;
• after consultation with the Director-General, the Applicant is required to publish a notice of intention to apply for an Order in Council at least twice, with five to ten days between each publication, in a local newspaper and at least once in daily newspapers in Auckland, Wellington, Christchurch and Dunedin [section 5(1)(b)};
• the published notice of intention must:
state the date of first publication of that notice,
state the place where a plan of the proposed reserve can be inspected,
- give a general description of the area of the proposed reserve, and
call upon persons wishing to object to the making of the Order to send in a written objection specifying their grounds to the Director-General, and to serve a copy of this objection on the applicant, within two months from the first publication of that notice [section 5(1)(c)};
• the applicant must give written notice of the proposed reserve to:
all persons owning any estate or interest in land in, or adjoining, the area of the proposed reserve,
any harbour board if the area, or any part of the area, of the proposed reserve is within that board's jurisdiction,
any local authority or public body in which the foreshore, or control of such, is vested, if that foreshore, or any part of it, is within the area of the proposed reserve,
the Secretary for Transport, and
the Director-General of Agriculture and Fisheries [section 5(1)(c)};
• section 5(2) requires the Director-General to prepare a plan of the boundaries and extent of the area of the proposed reserve, to be open for inspection free of charge at the nearest departmental office during ordinary office hours; -8-
• objectors should comply with the requirements set out in the notice of intention in making an objection [section 5(3)J;
• the applicant may answer the objections by writing, within three months of the first publication of the notice of intention , to the Director-General. All objections and answers received as required shall be referred to the Minister [section 5(4)J;
• section 5(6) states that, regarding the objections made, the Minister shall, before considering the application, decide whether any objection should be upheld. In doing so, the Minister shall consider any answer made. If the applicant is the Director-General, then the Minister can obtain an independent report on the objections and the application;
• if an objection is upheld then the proposed area can not be declared a marine reserve. In making this decision, the Minister is not bound by any formal procedure but "shall have regard to all submissions made by, or on behalf of, objectors and to any answer by the applicant." An objection should be upheld if the Minister is satisfied that declaring an area to e a marine reserve would:
- interfere with any estate or land in or adjoining the proposed reserve,
- interfere unduly with any existing right of navigation,
- interfere unduly with commercial fishing,
interfere unduly with or adversely affect any existing usage of the area for recreational purposes, or
otherwise be contrary to the public interest [section 5(6)J;
• if, after considering all the objections, the Minister believes that no objection should be upheld and that to declare the area a marine reserve;
will be in the best interest of scientific study,
will be for the public's benefit, and
- is expedient,
the Minister shall if the Ministers of Transport and Fisheries concur recommend to the Governor-General that an Order in Council declaring a marine reserve be made [section 5(9)J; and -9-
• the decision of the Minister is final [section 5(7)]. ,,11
In this instance the Director-General of Conservation was the applicant for the
reserve pursuant to section 5(1 )(a) MRA.
8 Background to Application
In 1987 the Department of Conservation ("DOC") inherited the responsibility for
marine reserves from the Ministry of Agriculture and Fisheries ("MAF"). DOC's
administration of the Marine Reserves Act 1971 is guided by the principles of
the Conservation Act 1987. One of the Department's functions as defined by
the Conservation Act is to "manage for conservation purposes, all land and all
other natural and historic resources" (section 6(a) Conservation Act 1987). The
DOC mission for marine areas is "to conserve the natural character and quality
of the coastal and marine environments of New Zealand. 12
The Department of Conservation has a statutory obligation to interpret and
administer the Convervation Act so as to give effect to the principles of the
Treaty of Waitangi. 13
11 Extract from Report of the Regulations Review Committee on the complaint of Mrs Mary Bowers regarding the Reserve, pages 5-6.
12 Marine Reserves Guidelines, Te Whanganui-A-Hei (Cathedral Cove) Marine Reserves Committee, attached as Appendix 12.
13 Conservation Act 1987, Section 4. -10- One of the DOC's objectives is to establish a network of marine reserves
around the country.
Appendix 14 is a copy of a map of New Zealand with the proposed marine
reserves being investigated by DOC. 14
The Marine Reserve Guidelines identifies some difficulties in creating a marine
reserve under the Marine Reserves Act 1971 as being:
(1) The Act was passed primarily for preserving areas of marine habitat for
scientific study. As a result, the Act contains few provisions to allow for
recreational or traditional use of reserves. Amendments to the Act in 1977
and 1980 allow wider range of management options. Provisions for the
traditional or recreational use of marine reserves are possible. However,
the Act still emphasises that the marine life of any reserve should be
maintained as far as possible in its natural state (Le. protected and
preserved).
(2) Traditional Maori fishing rights in marine reserves are not specifically
recognised in the Act. However, in cases where the Department is
14 Marine Reserves Proposals & Investigations Map, DOC from Marine Reserve Guidelines, app 12. -11-
applicant (DOC), the Department endeavours to ensure that the views of
all interest groups are taken into account. 15
On 14 May 1991 the Minister of Conservation commissioned the Bridgeport
Group to make an independent assessment of the Cathedral Code proposal
pursuant to section 5(6) MRA. 16
This commission appears to have related to DOC concerns that there needed
to be an independent report commissioned pursuant to section 5(6) of the
MRA. This would avoid any later claims querying the Minister of Conservation's
decision in light of the statutory framework whereby the Director-General of
Conservation applied in effect to his own Department for consideration of the
marine reserve proposal. Legal advice from the Waikato Conservancy to the
Regional Conservator Waikato on 9 January 1991 stated:
"For the Minister to rely primarily, if not solely, on any answer made by the Director-General to an objection to an application made in the first place by the Director-General, gives rise to understandable concern as to whether some prinCiple of natural justice or equity is, being infringed, most obviously the notion that one cannot be a judge in one's own case. ,,17
15 Supra, note 12, paragraph 8.2.
16 Bridgeport Report, Independent Assessments for the Minister of Conservation July 1991, page 2.
17 Letter from Waikato Conservancy Solicitor to Regional Conservator Waikato, dated 9 January 1991. -12-
In 1990 the DOC commissioned two independent scientific assessments of the
Cathedral Cove area to establish its physical and biological features and its
scientific value.
Extracts from these assessments in support of the proposal stated:
"The proposed reserve encompasses a range of high quality, sub-tidal habitat types within a confined area, in that these habitat types are considered representative of the open, main land, east coast of the Coromandel Peninsula." (Coffey et al 1990).
"... the proposed reserve is representative of the major coastal types found between Kennedy Bay and Hotwater Beach. The proposed reserve thus conforms with the criteria set out under the Act that it be representative of the adjacent coastline." (Smith, OSIR 1990).18
9 DOC Procedures
9.1 In the Minister of Conservation's announcements concerning the reserve, the
Cathedral Cove reserve was described as:
"having marine life and a wide range of habitats which are richly typical of the east coast of the Coromandel Peninsula. The habitats include high quality kelp forests, rock flats, red algal assemblages and sand flats with locally dense scallop populations. The underwater scenery is of distinctive quality, including the beautiful sponge gardens east of Waikeranga Island and a richness of colours in a shallow mix seaweed zone. The area has a number of outstanding natural features, in parlicular, the geomorphological feature known as Cathedral Cove. This is a natural amphitheatre sculptured by the sea into a large gothic archway passing beneath a small headland. ,,19
18 Supra, note 16, referred to at pages 4 and 5; also attached is Appendix 18 Marine Reserve Proposal Hahei Coromandel Peninusla, Brian T Coffey & Associates Report
19 Cathedral Cove Marine Reserve Announcement. -13-
DOC Waikato stated in a letter to Trevor Mallard, Labour Hamilton West
Member of Parliament on 23 March 1990 that:
"Our selection of the site at Hahei was made after considering a large number of biological and physical factors, public response from public meetings and all major towns on the Coromandel over the past 10 months in a public questionnaire. There was a clear understanding that people were very supportive of marine reserves, that these reserves had to be accessible and that a site on the eastern Coromandel Peninsula somewhere in the Mercury Bay region is desirable. Further discussions with both commercial fishers and the Tangata Whenua, consideration of foreshore ownership, the availability of a variety of marine habitat types within a definable area of sufficient size to be ecologically viable, the incorporation of islands and known recreational usage, narrowed the options down to the Hahei Beach to Cooks Beach locality.
Within this 8 square kilometre area we have a variety of marine habitats, sand and bouldered beaches and rocky shores and headlands, extensive reef systems, clear, quiet waters suitable for a wide range of passage, recreational passage and several islands including Mahurangi Island. This island is one of the very few large island recreational reserves on the Coromandel which has tremendous potential for recreational development, education and interpretation. ,,20
In briefing the Minister of Fisheries, the Regional Manager of MAF Fisheries
North advised the Minister of Agriculture and Fisheries that:
"The area was selected as suitable for consideration as marine reserve status after extensive consultation with residents, and site investigations, by the Waikato Conservancy of the Department of Conservation. ,,21
20 Copy of letter attached as Appendix 20.
21 Undated letter to Minister of Fisheries from MAF Fisheries North. -14-
Correspondence from DOC states that consultation took place initially in the
form of public meetings and distribution of survey forms all around the
Coromandel Peninsula. Through this process the Mercury Bay area was
identified as the most favoured location on the Peninsula for a marine reserve.
Subsequent investigations, combined with ongoing discussions with Mercury
Bay residents and user groups led an alternative area being proposed as a
marine reserve. 22
Correspondence from Rick Thorpe to Helen Russell (a member of the public,
enquiring about procedures used in selecting the Hahei site), states in answer
to her question regarding other areas that were looked at and what studies
were carried out thae3
"We looked at two areas, both of which recorded the highest interest as potential sites from the questionnaire ... no studies were carried out. However we (DOC staff) with input from a range of experts in local knowledge assessed the suitability of both sites by considering issues like:
(a) Diversity and abundance of known habitats and communities, rare species, etc. (b) Known values, uniqueness, scenic qualities, biological and geomorphological values. (c) Accessibility to the general public both pedestrian and boat - existing roads, tracks, etc. (d) Availability of servicing facilities. (e) Adjoining land ownership and control. (f) Adjoining land usage, do any threats exist. (g) Will a reserve proposal complement existing adjoining land usage.
22 Copy of alternative proposal (Hahei Action Group).
23 Letter from Helen Russell to R Thorpe, DOC Hamilton dated 31 May 1990. -15-
(h) Current recreational activities, water depth, weather pattern. ,,24
In an earlier letter to Helen Russell Rick Thorpe advised that:
"We have been looking for appropriate sites on the Coromandel Peninsula since April 1989. After talking to various dive groups, rate payers associations, commercial fishers, as well as the questionnaire results, we chose the Mercury Bay area as the location of our first marine reserve. The Hahei proposal was decided upon in March of this year. ,,25 (Emphasis added)
Appendix 26 shows a chronological sequence of events followed by DOC
prepared by Tony Roxburgh, DOC Waikato to Andrew Jeffs, Marine Reserve
Task Force showing the steps taken by DOC from June 1990.26
9.2 Questionnaires
Appendix 27 is a copy of the original DOC questionnaire that was originally
sent to residents. 27
The claimant who has been a property owner since 1986 and is a full time
resident maintains that he did not receive a copy of this questionnaire.
24 Letter from R Thorpe to Helen Russell dated 1 June 1990.
25 Letter from R Thorpe to Helen Russell dated 31 May 1990.
26 Copy attached as Appendix 26.
27 DOC, original questionnaire to residents. -16-
DOC's position was that:
"The questionnaire was distributed at public meetings at Thames, Tairua, Whitianga, Coromandel, Whangamata and Waihi between 10 and 15 April 1989. Copies were also available from various public offices in information centres. The public meetings referred to were advertised in the local newspapers (Hauraki Herald and Waikato Times) and notices were placed in prominent community service centres. Both the Cooks Beach and Hahei Vii/age stores displayed these notices. In total, 200 people attended the public meetings, including 70 at the meeting at Whitianga. A total of 213 responses (21.3%) of the questionnaires distributed, were returned. 47% of the respondents were deemed to be "Iocal" respondents in that they were resident on the Coromandel Peninsula, including Hahei. ,,28 (Letter from Dr Jeremy Gibb, Co-ordinator of Marine Reserve Task Force to Mary Bowers dated 31 August 1990).
It is questionable how many of the 47% of the respondents were resident or
had properties in the Hahei area.
In a letter from Tony Roxburgh to Mr Bill Dillon, MP for Hamilton East, Tony
Roxburgh outlines how the site at Hahei was selected. He refers to the
questionnaire as showing:
"... a clear indication that people were very supportive of marine reserves, that these marine reserves had to be accessible and there was a preference for a site within the Mercury Bay region. Further discussions with both commercial fishers and the Tangata Whenua, consideration of foreshore ownership, the availability of a variety of marine habitat types within a definable area of sufficient size to be ecologically viable, the incorporation of islands and current recreational usage, narrowed the options down to the Hahei Beach to Cooks Beach locality. ,129
28 Letter from Dr Jeremy Gibb, Co-ordinator of Marine Reserves Task Force to Mary Bowers dated 31 August 1990.
29 Copy of draft letter attached as Appendix 29. -17-
In a letter to the Ombudsman, Mr G Bowers, a property owner in Hahei noted:
"... that the closest of the towns where the questionnaires were handed out are a three quarter hour drive from Hahei. Of the 1,000 questionnaires handed out there were 213 replies. 98 respondents were regarded as being local, but local was later defined as being resident on the Coromandel. The population is around 35, 000 on the Coromande/. A hundred of these respondents chose the Mercury Bay (a huge area) as their first choice as a location for a marine reserve, but it is interesting to note that nobody appears to have named Hahei or Cathedral Cove as a choice for location in that original questionnaire survey. In fact only 7% (of the 213 who replied) named anywhere near Hahei."
Mr Bowers commented that, "that is not 'very strong support' (see results of
survey) for a reserve anywhere let alone at HaheL,,3o This view is contrasted
with DOC's view that the: "Survey of views in marine site location preferences
had also been taken. The results, Mr Thorpe said showed strong support for
the marine reserve concept and a public preference for reserves on the east
coast. ,,31
9.3 Public Meetings
A series of public meetings were given to public and interest groups on marine
reserves on the Coromandel Peninsula by DOC.
30 Copy of letter attached as Appendix 30.
31 DOC News Release dated 7 March 1990. -18-
It was not until nearly the end of the series of talks that DOC spoke at the
Whenuakite Hall at Hahei on 15 April 1990.32
The meeting listed on Appendix 32 with the Hahei Ratepayers Association on
15 April 1990 did not take place.
Despite the meetings in the Hahei region taking place in April 1990, it is
interesting to note that in the DOC news release (Appendix 31) on 7 March
1990 DOC has indicated that from the survey of views and marine reserve site
location preferences there was "strong support for the marine reserve concept"
and also that "DOC's Cathedral Cove marine reserve proposal had the support
of commercial fisherman in the Hahei area and the Ngati Hei Tangata
Whenua."
Correspondence from the Hahei Beach Users Group to the Waikato
Conservation Board during February 1991, commented that:
"At the meeting at Whenuakite Hall at Easter.. .four hundred people (DOC estimate) attended. Most of them were ratepayers and/or residents in the area. It was clear from speakers that there was very considerable resistance to the marine reserve as tentatively proposed. Finally the meeting, acting on a motion from the floor, resolved by a very large majority that before any question of a marine reserve was dealt with, it be recommended to the relevant authorities that a fish conservation plan for the whole of Mercury Bay be investigated, many believing that such a concept would obviate the need for a marine reserve as such.
32 DOC list of talks given to public and interest groups on Marine Reserves on the Coromandel Peninsula. -19-
It was here that Or Brian Coffey, environmental consultant engaged by DOC stated that a buffer zone of at least one kilometre was essential to the success of a marine reserve. This was a most unwelcome shock to the people assembled."
The Group went on to say that:
"In June 1990 ... it proposed an alternative siting of the marine reserve amongst three thousand (approximately) ratepayers in the total Mercury Bay area, at Waitaia Bay on the northwestern coastline of Mercury Bay and commonly referred to as the "Whau area". This approach was rejected by DOC, on the grounds that the area of seabed at Waitaia Bay was not as desirable as Hahei and Cathedral Cove and that it had no public access except by boat. ,,33
In a letter to the Regulations Review Committee dated 28 June 1993, Charlie
Tennent, on behalf of the Hahei Beach Users Group Committee commented
that:
"No form of consultation had been offered to the Beach Users Group and that evidence submitted by Mrs Bowers (see 8.16 Bowers complaint) would suggest that this pattern has also been experienced by other groups representing local interests from the Hahei and Cooks Beach communities. ,134
Mrs E A Bayley in a letter to the Director-General, DOC, dated 21 August 1990
expressed her concerns about the public meetings being held and stated that:
33 Hahei Beach Users Group to Waikato Conservation Board dated February 1991.
34 Copy of letter attached as Appendix 34. -20-
"The moods of the meetings were (from those we attended and from those friends and Hahei neighbours attended) very much against DOC's proposal for a marine reserve. To say there is 62% of support is just ridiculous and it appears you may not be aware of the real situation. There is a well organised group of bach owners organising the opposition, but they speak for a very large group and they have certainly not intimidated anyone at the public meetings. But they have been instrumental in bringing to everyone's attention just what the Hamilton DOC is trying to do with this marine reserve."
She went on to state that:
"lfthere has been any bias, it has definitely been on Mr Rowan's side, and I would ask you to find out the majority of the wishes of Hahei ratepayers, bach users and general public before any important decisions are made. ,,35
On 30 August 1990 Gerry Rowan in an electronic mail message to Jeremy
Gibb, refers to the letter from Mrs E A Bayley and referred to "the antis having
"held the floor"".36
Appendix 37 shows a draft letter in response to Mrs E A Bayley with an
assurance that:
"Mr Rowan has assured me that the Department has not had a closed mind on the matter of location and considerable effort has gone into assessing the alternatives that have been floated from time to time. However, these
35 Copy of letter attached as Appendix 35.
36 Copy of E-mail message attached as Appendix 36. -21-
other locations have not been anywhere near as suitable as the coastline now under consideration. ';37
G E Bowers in a letter to the Minister of Conservation dated 4 May 1992
referred to the Hamilton meeting:
"... attended by over 120 people there was almost total opposition. At the Hahei meeting where opposition swamped support, DOC officials refused to allow a head count of those opposing. Mr Rowan of the Hamilton Branch of DOC said that he was not worried about opposition to the proposal and was not "in the numbers game". At other meetings where opposition was the same the response the same also - "1 am not in the numbers game". Mr Rowan has remained steadfast in his denial of any substantial opposition from interested parties to the specific proposal, and has been quoted in the media as saying there are only a small number of protesters, decrying them as a selfish group who want Hahei for themselves. ,,38
C R Harsant in a letter to Director-General, DOC, dated 15 August 1990
referred to the meetings as:
"... mostly being held away from Hahei... all the meetings which I have attended did not have an independent chairman and even though it was obvious that the majority of people present, were against the proposal, members of DOC clearly stated that they were not there to hear whether or not people supported the proposal. Their only reason for calling a reason was to outline their proposal to the general public. ,,39
37 Copy of letter attached as Appendix 37.
38 Copy of letter attached as Appendix 38.
39 Copy of letter attached as Appendix 39. -22-
This letter from C R Harsant was sent to Tony Roxburgh, by Jeremy Gibb with
a request that:
"... very careful consideration be given as to the wording, see that we don't alienate these enquirers further. ,,40
With respect to DOC's earlier statement that Ngati Hei were in support of the
proposed marine reserve, this record notes visits and contact with Ngati Hei on
dates after March 1990 to finalise boundaries and other matters (see meeting
on 11 July 1990, written confirmation sought on 6-10 August, letter to Ngati Hei
on 20 August 1990).
9.4 Correspondence
As far as receiving comment from local residents on the proposal, it appears
that DOC was of the opinion that the public meetings over the March and the
Easter period 1990 would facilitate this by enabling DOC to:
"... outline the Department's interest in this location and the procedures for establishing marine reserves and seek comments from both ratepayers and transient users. From this there should be a clear indication on where the most appropriate will be. ,,41
This letter appears to have accepted that a marine reserve was to proceed in
the Hahei area and that the public meetings whilst seeking comment, would
40 Fax to Tony Roxburgh from Jeremy Gibb dated 29 August 1990.
41 Copy of letter, Appendix 41. -23-
also facilitate a clear indication on where the most appropriate boundary of the
reserve for DOC staff to be able to "engage in the formal notification process."
On 20 March 1990 Tony Roxburgh in a letter to the Task Force, Marine
Protected Areas Conservation Head Office discussed the employment of Dr B
T Coffey and associates to collect information on marine reserve proposal at
Hahei.
Paragraph four of that letter states:
"We hope to publicly notify our intention to apply for an Order- in-Council as soon as the initial descriptive work above, is completed. At that stage formal notice will be sent to MAFISH, adjoining land owners, etc. Presently, we are still seeking public input in the desirability of the Hahei location, and in many ways this is difficult. Many of the users are transient, residing in Auckland, the Waikato and the BOP. We have sent leaflets, (copy attached) to many local groups and organisations, Hahei Ratepayers, etc. to obtain initial comment and we expect substantial feedback over the next two weeks. This input will identify any issues we must address in our application. ,,42
Clearly DOC intended to apply for an Order-in-Council once the descriptive
information Dr B T Coffey and associates was to supply was received. Any
comment from local groups and organisations or public would act to highlight
points that DOC needed to cover in its application, presumably to ensure that
it would succeed.
42 Letter from T Roxburgh to DOC Head Office dated 20 March 1990. -24-
In an electronic mail message from the Hamilton office of DOC on 22 March
1990 to Jeremy Gibb, the unamed author states:
"We have had substantial interest in a proposed MPA at Hahei which is good, it indicates that people are at least thinking about it. But there has been some adverse reaction, primarily from residents, and to a lesser degree holiday users, and we expect this."
Further on in reference to the public meetings and caravan to be sited at Hahei
and Cooks Beach over the Easter period 1990 the message goes on to state:
"The comments and info we obtained from the public will be combined with our views to establish the most desirable site and boundary, but in my opinion the arguments will have to be good for us to change our minds. ,,43
DOC's clear intentions of establishing an MPA network around the New
Zealand coastline was clearly stated in the last paragraph.
On 29 June 1990 Gerry Rowan, the regional conservator at DOC Waikato in
a letter to the Director-General, Head Office, spoke with respect to the issue of
public consultation of:
"... openly asking people (through this whole process) to respond to the different levels of information that were provided at the various times in the process and to let us have details of any areas of concerns. We have stressed that the Deparlment wants to know about the issues, so that they
43 Copy of Electronic mail nessage from DOC Hamilton to Jeremy Gibbs dated 22 March 1990. -25-
can be tested, and that essentially we are not into playing "the numbers game". Alternative proposals or new ideas have been welcomed. ,.44
This comment that "we are not into playing the numbers game" arises again,
in the context of local residents at the meeting in the Whenuakite Hall, asking
DOC staff to take a hand count of the people present to indicate that there was
a low level of support for the proposal. This was refused as DOC staff, who
stated that "we are not into playing "the numbers game"".
Further on in the report the significance of the comment "the numbers game"
will be more apparent with the numbers obtained from objections received
being of prominent importance to the DOC application.
DOC Waikato's view of local residents who opposed the reserve appears to
have been biased, from correspondence cited.
Further on in his letter (Appendix 44), Gerry Rowan referred to:
"... a relatively small but well organised group of bach owners resident here in Hamilton who have taken it upon themselves to oppose the concept of a marine reserve anywhere in the vicinity of Hahei. Essentially their viewpoint is that they will support the creation of a marine reserve but "in someone else's backyard"".
Gerry Rowan goes on to refer to DOC as having:
44 Copy of letter attached as Appendix 44. -26-
"... no fixed agenda and that we are simply managing a process which we initiated but which is now largely being driven by public opinion."
Gerry Rowan also refers to:
"The action group has amongst its keen members the deputy chief executive of the Waikato Times and hence this has become a powerful medium for their campaign against the Department."
And:
"The Hamilton action group has been active in lobbying local MPs and we have been very keen to brief Messrs Dylan and Mallard, the two Members of Parliament for Hamilton."
On 30 October 1990 in an electronic message recorded on a DOC Waikato file
the message states:
"1 could go to great lengths in explaining the local politics involved in this case but, in a nutshell we have a small group of very articulate and wealthy people determined not to have a marine reserve in their "backyard". Some have admitted as much and will resort to any activity, including the spreading of gross misinformation to achieve the objective. ,,45
Other Members of Parliament were also in dialogue with DOC Waikato at
various stages. On 29 June 1990 DOC Waikato wrote to Graham Lee in
45 Copy of E-mail message attached as Appendix 45. -27-
response to his request for information regarding the reserve. 46 John
Greenwood (DOC, Waikato) referred to "the flak that Hahei is drawing" and
requested that Alan Edmonds of Head Office Conservation should "vet any
reply to any M P. ,,47
On 4 July 1990 Jeremy Gibb, Marine Reserves Task Force in a memorandum
to Tony Roxburgh referred to the report "Draft Marine Reserve Application
Hahei" and the purpose of the report to accompany a recommendation to the
Director-General to proceed with an application for a marine reserve at Hahei.
This is necessary in terms of s.5(1)(b) of the MRA. He went on to state that:
"The Director-General will be keen to ensure that the marine reserve proposal will not fail because of objections lodged under section 5(6) of the Act."
The letter then went on to state "what matters the report must cover for the
Director-General. "
In reference to the opponents of the reserve, Jeremy Gibb stated that:
"The report should not be made public before it is considered by the Director-General. The opponents of the reserve will be looking to pick holes in the arguments put up by the Department's. Therefore, the report must
46 Letter from DOC Waikato to Graeme Lee dated 29 June 1990.
47 Fax from DOC Waikato to Alan Edmonds, DOC Head Office, dated 29 June 1990. -28-
provide a clear and logical case for the marine reserve so that those opponents can see that their concerns have not been overlooked. ,,48
On 17 July 1990 DOC Waikato hosted a meeting between the Minister
Honourable Phillip Wollaston, local MP Mr Dillon, the Minister's Press
Secretary, Councillor Adams from Thames-Coromandel District Council, John
Greenwood, Tony Roxburgh and John Gaukrodger.
After listening to a summary of the proposal it was noted that:
"The Minister was very supportive of the Departments's preferred option and indicated genuine enthusiasm in seeing the Department's proposal achieving its successful ultimate conclusions. ,,49
Appendix 50 is an internal memorandum showing the matters that needed to
be completed for the Hahei Marine Reserve application to proceed. 5o
A letter from Kathy Walls to Rick Thorpe dated 9 July 1990 provided policy
comments on a proposal and clarifies that the legislative basis for the
application contained in s.5(1 )(a) of the MRA means in effect that:
48 Memorandum from Jeremy Gibb to Tony Roxburgh dated 4 July 1990.
49 Copy of "Note for File" dated 17 July 1990, J Gaukrodger, Appendix 49.
50 Memo from Andrew Jeffs to Tony Roxburgh dated 19 July 1990. -29-
"The Director-General makes the application (for the marine reserve) to himself ,,51
On 19 April 1990 Gerry Rowan by electronic mail to Andrew Jeffs refers to "the
anti brigade", (presumably local residents who opposed the reserve proposal).
In reference to the public meeting at Whenuakite on 12 April 1990 Andrew Jeffs
comments that:
"The public meeting at Whenuakite on Sunday night had the potential to become a slinging match. However, Tony did a superb job of chairing the meeting. (Tony Roxburgh). By keeping order of the meeting of over 400 people he enabled each "side" of the community to hear the views of the other. From our point of view this made the meeting a real success. ,,52
On 10 August 1990 in a facsimile transmission from Kathryn Delahunty, Head
Office, to Andrew Jeffs, the media issues relating to the marine reserve
proposal were commented on. Catherine Delahunty went on to state that:
"Once an application is advertised we need some allies both within the Hahei and in the wider community and in the local authority... The report clearly identifies the issues of community concern and I feel the next step to make the reserve a success is to identify who the allies and enemies will be during this phase of the relationship with the community. We need a local medial campaign which presents the proposal as meeting the aspirations of many and that as a result of DOC listening to the concerns of the people. It may not please everyone but ideally they would have to concede that a considerable compromise had been proposed. Either way we need to be prepared for the flak from the Hamilton opposition etc. and
51 Copy of letter attached as Appendix 51.
52 Copy attached as Appendix 52. -30-
we need to encourage people outside DOC to show their support publicly. ,,53
In a press statement dated 12 July 1990 Conservation Minister Phillip
Woolaston referred to the role of DOC in:
"... attempting to redress the balance ... by promoting the establishment of a number of marine reserves around New Zealand. ,64
The consultative process for a proposed Mercury Bay marine reserve, which
started in April 1989, is continuing with an encouraging amount of public input. ..
9.5 Alternative Boundary (HBAG)
The Hahei Action Group put forward an alternative proposal to the DOC
proposal (see Appendix 22) at Waitaia Bay.
A newspaper article in the New Zealand Herald on 2 July 1990 showed this
alternative proposal. 55 Further relevant news clippings concerning the reserve
are attached as Appendix 56. 56
53 Copy of fax attached as Appendix 53.
54 Copy of press statement Appendix 54.
55 NZ Herald, 2 July 1990.
56 Various newspaper clippings. -31-
On 20 March 1990 Charlie Tennent on behalf of Waikato Users of Hahei Beach
and Bay wrote to the Regional Conservator, DOC, Hamilton,57 concerning a
meeting held in Hamilton by people who were to be affected by the reserve
with a suggested amendment to the current proposal, being that:
"The eastern boundary of the reserve be moved west to a line drawn from the western end of Hahei Beach to the seaward end of Motueka Island."
General information concerning the Hahei Beach Action Group is attached as
Appendix 58. 58
There was an alternative boundary put forward to DOC by the Hahei Action
Group. The Minister also referred to these proposed boundaries for a reserve
put forward by the Hahei Action Group.
On 6 August 1990 Charles Tennent on behalf of the Hahei Beach Users Action
Group in a letter to the Director-General, Department of Conservation, referred
to this alternative proposal and the re-issuing of the action group's earlier
circular containing the alternative proposal and indicating a 78.8% level of
support for the alternative proposal. 59
57 Copy of letter attached as Appendix 57. 58 Hahei Action Group information.
59 Copy of letter attached as Appendix 59. -32-
9.6 Thames-Coromandel District Council
Correspondence from the Thames-Coromandel District Council dated 30 August
1990 indicates their support for the proposed marine reserve.
In an earlier letter to the District Mayor, Gerry Rowan, he said that:
'}!\s every week of delay is not helpful to our objectives, I am hopeful the Department will be able to publicly notify its proposal within the next few weeks.,,60
9.7 Waikato Conservation Board
Various extracts from minutes of Waikato Conservation Board meetings held
between 27 November 1990 and 8 May 1992, as they refer to the reserve are
attached as Appendix 61.61
In particular, the meeting held on 9 May 1991 with respect to an alternative
siting of the reserve, Gerry Rowan states that:
"He told the Hahei residents (referring to Charles Tennent, Charles Harsant and Gaine Carrington who were present at Cathedral Cove) that he thought there might be some small room to manoeuvre on boundaries, but too big a change would effectively make it a new proposal, and DOC would have to start all over again on a new application."
60 Copy of letter attached as Appendix 60.
61 Various Waikato Conservation Board minutes. -33-
At its meeting on 30 October 1991 discussion was held concerning the reserve
proposal and the Minister's involvement in the process. After discussion there
was a resolution that:
"The Board writes to the Minister of Conservation pointing out that there is not opposition to a marine reserve per se at Hahei, but there is great concern over the boundaries as presently proposed. Further, that the lack of a decision on the proposal is impacting heavily on people's lives and decisions and he be urged to make a decision one way or another before the 1991192 summer season."
Clearly there was opposition to the marine reserve at that time.
On 29 August 1990 Jeremy Gibb in a fax to Gerry Rowan in response to
enquiries being briefed to objectors commented that:
"Bit of a shame as the actions (not replying promptly) are fuelling the objectors' cause and making a job that much more difficult for us. I now have the impression that a lot of unnecessary opposition has been generated at Hahei which could have been avoided. ,~2
Reference is again made to the "opposition" by Gerry Rowan who states:
"1 feel that, notwithstanding the frustrations of the tactics of the opposition, this one is coming together nicely but we must get it "to air". I will be finalising my consultation with Ngati Hei on Tuesday and we want to publicly notify on Wednesday the 12th.
I believe it's a winner but I am not underestimating the strength of our opposition team. Our disadvantage over the past two months has been in not being able to open up on what we have in mind while the opposition ran riot with a lot of misinformation.
62 Copy of fax attached as Appendix 62. -34-
I hope the Minister is still strongly behind us - we cannot afford to have wavering political support, election or no election. We will probably have some of Rob Storey's electors writing to him soon - he is certainly being got at by the antis. ,163
The Hahei Beach Users Group also conducted a poll concerning support or
otherwise of the marine reserve proposal to which 800 people responded. This
poll showed a 9.7% support for the original DOC proposal or some variation of
it, including only 15.8% support from HaheilCooks BeachlWhitianga
respondents. 64
In preparing the application for a marine reserve the draft application document
was considered by the Marine Reserves Task Force. 65
As the month of September 1990 progressed the application was at the stage
of being publicly notified.
Jeremy Gibb in an electronic mail message dated 21 September 1990 to Tony
Roxburgh referred to the:
"... considerable political pressure that the Director-General is under at the
present. II
63 Copy of fax dated 3 September 1990 attached as Appendix 63.
64 Letter to Director General from I J Russell dated August 29, 1990.
65 Memo to G Rowan from J Gibb dated 4 September 1990. -35-
And that:
"I am not prepared to pressure him further regarding the urgency you have put on his application. Gerry Rowan must do that. I will request Alan Edmonds to do likewise. If you publicly notify the application before the DG has considered it you will be contravening the Marine Reserves Act 1971. Under the circumstances you would be most sensible to plan public notification after Wednesday, 12 September. I have warned you and Jerry before about the dangers of driving this application by media deadlines and pressuring the Director-General. ,.66
In a letter dated 14 September 1990 to Dr Stella Penny of the Waikato
Regional Council from Gerry Rowan, a copy of the proposal was enclosed.
Gerry Rowan commented that:
"During the past three months or so the opposition has organised itself quite well and they have accused us of having a fixed agenda, that from the outset was determined to see a marine reserve established at Hahei. My response has simply been to indicate that what we have been engaged in during the past 18 months has been a process of initiating a community debate about the concept of marine reserves, seeking public feedback as to preferences for the location of one or more reserves on the Coromandel Peninsula, identifying the sorts of issues that people related to or were concerned about, homing in on a particular site (again based on what people were saying to us) and testing the specific issues raised in recent discussion and submissions about the effects of a marine reserve at Hahei ... However, I do regret that public understanding in this case has been confused somewhat by the inaccurate and misleading information that has been circulated by certain persons, one of whom has openly stated that he will oppose any proposal put forward by DOC.
However, be that as it may, I am not interested in attacking the Hahei Beach Users Action Group or engaging in their type of campaign. That is not the business we are in and I am happy to let our proposal document speak for itself. ,.67
66 Copy of E-mail message, Appendix 66.
67 Copy of E-Mail letter, Appendix 67. -36-
An example of a letter to an objector, Mr G A Latham dated 18 September
1990 from Gerry Rowan is typical of those forwarded to objectors at the time.
With respect to consultation, Gerry Rowan states:
"For its parl, early in 1989 this office arranged a series of public meetings in the main population centres on the Coromandel Peninsula to discuss the marine reserve's concept and during the remainder of the year officers spoke with quite a number of groups having parlicular interests in the sea and coasts. At these meetings people were asked to provide us with feedback on their thoughts about the needs for such reserves, their preferences for the location of one or more reserves on the Coromandel Peninsula, and the sorls of issues that people related to or were concerned about. Subsequently we were able to home in on a parlicular location, again based on what people were saying to us and in March this year the Deparlment was able to float a possible reserve boundary.
It is imporlant to understand, that, until last Wednesday, the Deparlment has not had a firm proposal for a marine reserve at or near Hahei. "
With respect to the Hahei Beach Users Action Group he comments:
"Notwithstanding the fact that the action group has deliberately misrepresented the position of the Deparlment in this debate and appears to have set out to discredit DOC by whatever means, staff have been told very clearly that the Deparlment is not in the business of "responding in kind"... 1 have always believed that any proposal we developed had to be sound so that it would "sel/ itself" and generate broad community supporl. ,.68
The Waikato Conservation Board also wrote to the Minister of Conservation on
20 November 1991 and noted that:
68 Letter to G A Latham from G Rowan dated 28 September 1990. -37-
"It is clear that there are some strongly held opinions opposing the details of the proposal, although support for the generality. We believe it is important to have local approval, as it is the local people who will, in practice, be the monitors and police of the reserve. It would be preferable to modify towards a smaller reserve with total local support and we suggest that within a few years there could be a favourable attitude towards expanding the boundaries. We hope in time to be able to have other reserves around the Coromandel Coast, as well as other coasts in our conservancy, and we would like to avoid our initial marine reserve being established against the will of the locals. 1/69
9.9 Application for an Order-in-Council
On 9 May 1990 W 0 Sisarich of DOC legal section in a letter to Andrew Jeffs,
Marine Reserve Task Force referred to the requirements of the notice of an
application for an Order-in-Council pursuant to s.5(c) of the MRA. 70 This
comments on whether the application is able to include additional information
put forward as a management proposal. The letter went on to state that:
"If an application was formally notified with a proposal permitting recreational fishing the Minister would probably be in breach of the requirements of fairness and natural justice if he approved the marine reserve other than in terms of the publicly notified proposal."
On 30 August 1989 the procedure for marine reserve was listed in a file note
from DOC Waikato files. 71
69 Letter to Minister of Conservation from Waikato Conservation Board dated 20 November 1991.
70 Copy of letter, attached as Appendix 70.
71 Copy of file note dated 30 August 1989. -38-
On 13 September 1990 Alan Edmonds, Deputy Director-General forwarded to
the Director-General an application for an Order-in-Council to declare a marine
reserve at Cathedral Cove, Hahei.72 On the same day, Bill Mansfield in a letter
to Gerry Rowan stated that:
"I have examined the contents of the report as prepared by your office. I am satisfied that you have consulted widely with interest groups in the community over the proposal for a marine reserve and taken their concerns into account when preparing your proposal. I acknowledge that there has been sufficient consultation with me in terms of section 5(1)(b) of the Marine Reserves Act 1971 required for an application for an order in counsel declaring a marine reserve. I advise you to proceed with an application for a marine reserve at Cathedral Cove. ,,73
On 15 September 1990 a notice under s.5 MRA concerning the Director-
General's intention to apply for an Order in Council declaring an area of sea
around Cathedral Cove on the eastern coast of the Coromandel Peninsula a
marine reserve was advertised in the Hauraki Herald. (See Appendix 10).
This notice provided that:
"Any person or organisation may object to the making of the order in counsel establishing the marine reserve by specifying the grounds of their objection in writing ... within 2 months from the date of publication (i.e. 15 November 1990)."
72 Copy of letter, attached as Appendix 72.
73 Copy of letter attached as Appendix 73. -39-
After requesting legal advice from DOC Head Office concerning objections,
(electronic mail 21 September 1990) Warren Sisarich of the Legal Section,
Department of Conservation responded to Jeremy Gibb (Appendix 74)
indicating that:
"While submissions in support of the marine reserve application are therefore excluded from the objection procedures established under the MRA, each response to the public notice of intention to apply for an order in counsel declaring an area a marine reserve should be examined to see whether in fact it contains any objections. The fact that it may be drawn up in the form of a submission in support and may be headed up or titled as such does not preclude it from containing objections which may need to be dealt with. It may be that in some cases a document which on the face of it is a submission in support should be treated as an objection to the application not being approved. Each submission must be considered individually to ascertain whether it is to be treated as an objection in terms of the Act or as a submission in support.
While a submission in support may not be treated as an objection the applicant may append such a submission to any answer prepared under section 5(4) and use this submission in support of the answer. ,,74
On 1 October 1990 Tony Roxburgh in a response to an electronic mail
message from Andrew Jeffs concerning "improving our service to
conservancies preparing applications" stated:
"1 agree with what you say, our concern is that the Hahei Action Group may take this action to the High Court for a review of the procedures or activities undertaken by the conservancy. Mrs Helen Russell has both the money and will to do just that. We want to be squeaky clean from this end, hence the non involvement of Thorpe, Roxburgh and RC. Theo is well aware of the experience you and others have and will use it to best advantage. ,,75
74 Copy of E-mail letter attached as Appendix 74.
75 Copy of E-mail message, Appendix 75. -40-
Conservation groups were active in lobbying the members and those interested
in providing submissions in support of the proposal to DOC Waikato. Appendix
76 shows a letter from Anne Graham, Royal Forest and Bird Protection Society
of New Zealand Incorporated to Rick Thorpe dated 16 October 1990.76
8.10 Forest & Bird Magazine
In the Forest & Bird, Mercury Bay Group newsletter for May 1992 the following
insert referred to the reserve:
"sos - DOC are in trouble over the proposed marine reserve at Hahei, even with the revised boundaries. They desperately need supporl and submissions to be sent to Graham Lee, our M.P. and to Douglas Kidd, Ministry of Fisheries, in favour of the reserve. If you want help in understanding the benefits to people and the marine life, please ring Peter Carler. Phone 86381 - Business hours.,,77
Peter Carter is the head of DOC at Kauaeranga.
In response to this newsletter article, Mary Bowers wrote to the Minister of
Conservation enclosing a copy of the article and saying that:
"It would appear from the wording of this adverlisement that Peter Garler, apparently an employee of your Oeparlment, is attempting to solicit supporl for the reserve from people with no prior knowledge of the issues involved or those who are not directly affected by it. If this is not the case, what is the purpose of inviting people to contact him at work to have it explained to them before sending their submissions in favour of the reserve to the
76 Copy of E-mail letter, Appendix 76.
77 Copy of Forest & Bird Newsletter, Appendix 77. -41-
Ministers named in the advertisement. It is easy to convince people of the positive aspects of anything when they are not involved or have no knowledge of and are not affected by the negative aspects of a project. ,,78
Earlier on 30 August 1990 Gerry Rowan in a message to Jeremy Gibbs stated:
"We're following through on Forest & Bird publicity. I am told a Brian Coffey article is scheduled in the forthcoming issue of Forest & Bird and it would be good to get a small insert associated with it that notified the proposal and called for support. ,,79
In a memo from Gerry Rowan to Andrew Jeffs, Estate Policy Protection Division
dated 24 June 1992, Forest & Bird Newsletter was referred to as:
"It is most unfortunate the Mercury Bay branch of the Royal Forest and Bird Protection Society chose to word their newsletter in the way they did, because for someone not informed it may appear to implicate a departmental officer in some form of lobbying for support. In fact this was not the case.
Peter Carter, the Field Centre Manager at Kaiwairanga, addressed a meeting of the Mercury Bay Branch some time ago. The subject of his address was preparation of the conservation management strategy and I am informed that a general discussion afterwards focused on Moehau and the fencing project. The marine reserve proposal was still under consideration and the initiative to write to ministers or "if you want help in understanding the benefit to people and the marine life, please ring Peter Carter"... was entirely that of the Branch. Peter has categorically assured me that he had no part in engineering this or any other organised response. ,.ao
78 M Bowers to D Marshall, 28 May 1992.
79 Copy of E-mail message, Appendix 79.
80 Copy of memo, Appendix 80. -42-
9.11 Objections Received
On 16 October 1990 Gerry Rowan made a file note of a meeting with local
residents at Councillor Charlie Adams' home on Wednesday, 10 October 1990.
He commented that this was an opportunity to brief people about the proposal
and how we had come to this particular point and also to allow locals to have
their questions answered.
With respect to objections raised he commented that:
"Objection to the reserve proposal is largely a response to the activities of staff at the various public meetings and at the caravan during Easter weekend. A lot of people are "uptight" about DOC's fixed agenda, as demonstrated by staff and as indicated in our "in house" documentation. The marine reserve's newsletter was mentioned - the reference to the Hahei Marine Reserve being "a winner" and the flagship that proposal for DOC has not gone down at all well with the locals."
He went on to say that "much of the critical comment had to do with the
process, rather than the proposal itself.,,81
Appendix 82 shows an electronic mail copy of the report by the Director-
General of Conservation Concerning the Marine Reserve Application:
Cathedral Cove dated 13 November 1990 (draft). The recommendations being
options available to the Director-General that:
81 Copy of file note, Appendix 81 -43-
"(1) You receive this report and accompanying documents, in order that you may consider whether or not the objections should be upheld.
(2) Should you consider a report from me as Director-General of Conservation would assist you reaching your decision on whether or not to uphold any objection, I can arrange for such a report to be prepared at your request.
(Being a report referred to in section 5(6) MRA *)
(3) That you advise me of your decision whether or not you propose to hold up any objection." (Page 9).82
On 21 December 1990 Gerry Rowan in correspondence to Kathy Walls EPP
Division dated 21 December 1990 in reference to the objections that had been
received stated:
"1 am finding it increasingly difficult to be totally objective in responding to the continuing barbs from the Hahei Beach Users (Action) Group. It is evident from this latest letter to the Minister that the writers are persisting with their tactics of homing in on any isolated incident they can find to try and discredit the Department, in using innuendo or stating only half the story in an attempt to gain support for their cause." (Page 1)
"1 cannot categorically rebut the allegation about a staff member actively seeking submissions in support of the proposal because a number of the staff are on leave, but I am confident that staff have acted properly. Being mindful of earlier allegations by the Action Group of "harassment" by DOC staff and not wanting to compromise the Department's position in the legal process, when the formal proposal was advertised I instructed staff that it was not our role to go out and actively promote the proposal or to seek particular support. However, I did make it plain to community groups and others that we were happy to talk with them about what the proposal entailed and to clarify any issues."
Further on he states:
82 Draft Report by the Director-General of Conservation. -44-
"It is true that an individual who works for MAF at Ruakura was a key person in the formation of the Group PRIME, but the person concerned took this initiative on her own account and in her own time ... " (Page 2).
With respect to a reference to a criticism by the Action Group that he would not negotiate with them, Gerry Rowan stated:
"1 did say (amongst other things) that in this setting the Department was not in the business of negotiation. I said this because negotiation suggests a scenario where there are matters of difference between two parties with standing that need resolution, a situation which certainly did not apply here. In this case we were seeking views from a wide range of people in the community, including the Action Group, but Mr Tennent and his colleagues were preoccupied with some form of standing that they had given themselves and they acted in terms of their claim to be the representatives of the people. We knew this was not the case and I wass simply reminding Mr Tennent of the fact."
With respect to the comments from objectors that "they were more concerned about the process than with the proposal" Gerry Rowan went on to state:
"1 was prepared to concede that if we had our time over again there would be things that we would do differently. Independent chairing of our public meetings would be one - the local mayoral council member would be an option ... 1 also said that with ample resources we could have done more in the way of consultation, but I posed the hypothetical question - when can one be deemed to have consulted enough?"
Further on in this letter Gerry Rowan comments that:
"The Hahei Beach Users Action Group conveyed their view to the Thames Coromandel District Council at a meeting on 11 October 1990 that they would have no problem with accepting a marine reserve in its present -45-
location provided there was realistic provision made for small boat fishing and shallow water diving on the eastern boundary. ,,83
A record of all submissions received either in favour or support of the reserve
proposal is held at DOC, Waikato offices.
Appendix 84 is a copy of the criteria by which these submissions were
analysed at the DOC office. 84
An analysis of answers to objections on the DOC proposal for the Cathedral
Cove Reserve dated 13 December 1990 was put together by DOC Waikato.
(Appendix 85).85
The introduction from this report states:
"In terms of Marine Reserves Act 1971, Section 5(4) "The applicant may, on receiving any copy of objections under subsection (3) of this section, answer those objections in writing to the Director-General within three months from the date of first publication of the notice published pursuant to paragraph (b) of subsection (1) of this section and the Director General shall send any such answer he may receive within that time to the Minister for consideration.
The Department as applicant has received copies of the objections and this document sets out the Department's answer to those objections. All submissions accompany this report as an addendum.
83 Letter to Kathy Walls from G Rowan dated 21 December 1990.
84 Copy of criteria, Appendix 84.
85 DOC analysis of answers, Appendix 85. -46-
A total of 2366 submissions was received by the closing date, 15 November 1990, two months from the date of first publication ofthe first notice of intention to apply for an Order in Council declaring the area a marine reserve. An additional 452 submissions have been received since 15 November. The submissions received in time are recorded, with the late submissions being noted separately (eg 2366+452). A total of 692+7 were objections to the proposal, 1660+445 were submissions in support whilst 14+0 indicated qualified support, wanting a larger reserve but felt the proposed reserve was better than no reserve.
There were three groups engaged in encouraging people to respond to the proposal: the Hahei Beach users Action Group (HBUAG) who, whilst. supportive of marine reserves in general, oppose inclusion of Hahei Beach and the Bay in a marine reserve; Pro Reserves in marine Environments (PRIME) and the Royal Forest and Bird Protection Society (RFBPS) who both support the Cathedral Cove proposal.
People associate with the HBUAG accounted for most (581+5) of the objectors (see Table 1). The HBUAG distributed standard objection forms along with their information leaflet (Appendix 1) to at least 3,000 people, including all ratepayers in the vicinity of Hahei (HBUAG August newsletter). These forms were used by 568+5 objectors but 10+0 respondents used the form to indicate their support for the proposal.
PRIME organised a petition to express support for the proposal, obtaining 956+184 signatures and a further 19+4 submissions in support. They did not distribute any of their own information leaflets about the proposal. The RFBPS informed its members of the proposal only a few days before the closing date for submissions. Consequently, 141 of the 145 RFBPS submissions were received after 15 November 1990.
A minority of respondents wrote their own objections (124+2) or submissions in support (194+228).
The proportion of objectors increased with proximity to Cathedral Cove. The majority of submissions from Cooks Beach and Hahei were objections whilst submissions in support prevailed from respondents living more than about 10 km from the proposed reserve.
The following table provides a breakdown of submission types received by various respondent groups. These data are based entirely on the information provided in the submissions. The respondent groups are not mutually exclusive.
Correspondence From Objections Support Qualified Support
All respondents 692+7 1660+445 14+0 -47-
Residents 91+3 163+7 5 Bach Owners 184+0 33+2 1 Visitors 320+4 89+5 2 Property Status Unknown 87+0 339+431 0 HBUAG 581+5 10+0 0 PRIME 0+0 975+188 1 RFBPS 0+0 4+141 0 Individual Submissions 124+2 194+228 12 Form Submissions 568+5 510+29 2 Petition Signatures 0+0 956+184 0 Hahei Village 69+0 49+1 5 Cooks Beach Village 35+0 19+1 0 Whenuakite District 6+0 33+0 0 Whitianga Township 33+1 70+1 1 Coromandel Region 12+0 39+2 0 Waikato 159+3 645+13 4 Auckland 281+2 712+108 1 Other Areas 93+1 59+109 3"
With respect to consultation during the proposal development the report stated:
"At the outset it should be made clear that the consultation process entered into proper to the formal application being lodged is a non-statutory process. Nevertheless the Department considers it to be an important step in order that the Department, as applicant, can assess the community interests as well as ascertain ecological requirements.
Most objectors (94%), particularly those with property interests in the Mercury Bay area, considered the extent of consultation by the Department to be inadequate. However, as described in Appendix Two of the proposal, there were numerous opportunities for people to make their views known to the Department and many people took the opportunities both to become acquainted with issues and options and to make their views known to the Department. Nevertheless, it is always possible to consult further. A criticism expressed by absentee landowners was that notices advising of public meetings were not placed in all national newspapers but were advertised in the Waikato and especially in the Coromande/. This may have disadvantaged absentee landowners. However, notices were sent to all Hahei ratepayers.
None of the objectors presented an analysis of the actual consultation achieved, as documented in the proposal, to support the conclusion that -48-
consultation was inadequate. It is possible that a significant parl of the dissatisfaction expressed relates to the Oeparlment's decision not to adopt cerlain views offered, rather than to lack of opporlunity to present those views to the Oeparlment."
Summary of the report is as follows:
"No objector demonstrated any undue interference with any estate or interest in land adjoining the proposed reserve. Existing rights of navigation would not be affected by the reserve.
One commercial crayfisherman will be materially affected. However, the impact on commercial fishing is negligible, with less than one percent of the total crayfish catch from the Quota Management Area presently being taken from the proposed reserve.
The issue of primary concern to most objectors is loss of opporlunity for recreational fishing and diving for seafood. The reserve would reduce the number of places available to pursue these activities locally, but will not interfere with fishing in the most productive and preferred places. The most sheltered parl of Mahurangi Island and the Wigmore Passage area are excluded from the proposed reserve to preserve opporlunities to fish and dive for seafood when other parls of the coast are unusable due to easterly and norlherly winds. People will not have to travel furlher to fish or dive for seafood.
There is reasonable concern that as the reserve develops, public facilities will need upgrading to cope with the demands of users for the marine reserve and that the cost of this will fall on local ratepayers. The Oeparlment has agreed to assist with the provision of facilities for needs directly attributable to the creation and use of the Marine Reserves.
Many respondents advocated other boundaries. The extent that these suggestions encroached on other users' aspirations or omitted key attributes of a marine reserve illustrates the difficulty people have in acknowledging the requirements of other users.
Most objectors considered the extent of consultation between the community and the Oeparlment to be unsatisfactory.
The statutory authorities supporl the proposal but the TCOC advocates retraction of the eastern boundary.
6. Conclusion -49-
In the applicant's view, there are no reasonable grounds to uphold any objection in terms of Section 5(6) of the Marine Reserves Act 1971."
The claimant received a letter from the Minister of Conservation on 30 April
1992 advising the claimant of his decision to reject the objections to the proposed reserve.
This letter is in a standard form that was sent to all people who had forwarded an objection to the proposal. In his letter the Minister said that he believed:
"There is widespread public support for the proposal and I note that when a draft proposal was issued in September 1990, 71% of the 2,350 submissions received by the Department of Conservation were in favour of the proposal. Another 400 received out of time were a/so in favour of the proposal."
The five major criteria in the MRA covering grounds of objection were also considered and the Minister was of the opinion that he should not uphold any of the objections received. These grounds were referred to as follows:
"The first statutory ground for objection is if the proposal would "interfere unduly" with any adjoining landowner. Eight objections were received from persons having an interest in adjoining land. One objection pOinted out that adjacent landowners can launch a boat and fish just off their property. They were concerned that this right would be taken away. The right to launch a boat and to fish will not be taken away, although the choice of places available to go fishing will, I accept, be reduced. Overall my view is that a marine reserve would not interfere unduly with the property adjoining it.
The second statutory ground for objection concerns navigation. The marine reserve proposal cannot "interfere unduly with any existing right of navigation". Section 23 of the Marine Reserves Act adequately preserves -50-
access rights and navigation through marine reserves. The marine reserve does straddle a well known sea lane used by vessels travelling east from Whitianga to the Alderman Islands. I do not consider this will be interfered with significantly.
The third statutory ground for objection is if the proposal "unduly affects commercial shipping". While it is true that one fisherman will be affected in terms of his present location, he is entitled to catch his quota over a very wide area, anywhere between Te Arai Point and Cape Runaway. The interference will not be undue.
The fourth statutory ground for objection is if the reserve would interfere unduly with or adversely affect any existing usage of the area for recreational purposes. The marine reserve will, in my opinion, have an overall positive effect on current recreation usage generally in the area of the reserve, because of the rejuvenation of fishing stocks.
The opportunities available for general recreational enjoyment, for boating and for those who dive to enjoy the scenery or for underwater photography will be Significantly improved because of the beneficial effects the reserve will have on the marine life. The enhancement for these recreational users will, in my opinion, outweigh the effect on fishing and diving for take in the area of the reserve, so that on balance, there will be no adverse effect on recreation.
I should point out that many preferred and productive fishing areas have been deliberately excluded from the reserve. Such places include South Sunk rock, an enlarged part of the western side of Mahurangi island, and now all of Hahei beach. Ample provision has also been made for recreational take of crayfishing outside the reserve.
The fifth statutory ground is that of public interest. Many objectors were concerned about the impact of visitors on the area. Many expect a dramatic increase in visitors which existing services and public facilities cannot support. The Department of Conservation has told the Thames Coromandel District Council that it will assist in the provision of facilities as the need arises."
9.12 Independent Report -51-
On 9 January 1991 the Conservancy Office's solicitor wrote to Theo Stevens,
Regional Conservator Waikato, discussing the issue of independent advice to
the Minister, in light of the applicant being the Director-General.86
This memo commented on the potential for challenging the process by which
the Minister reaches his decision by review in the High Court (page 2) and of
the risk of review proceedings on the grounds of, for example, substantive
unfairness or pre-determination "should the Minister not obtain advice on the
objections from an independent source."
On 18 January 1991 the Director-General forwarded to the Minister of
Conservation a copy of the Director-General's report in connection with the
application for a marine reserve. 87
On 24 January 1991 Gerry Rowan wrote to the Director-General attaching a
draft report for submission to the Minister of Conservation. A number of issues
were commented on in this letter.88 Essentially Gerry Rowan was of the
opinion that:
"1 Notwithstanding the thrust of many of the objections, there has been very wide consultation and discussion over a period of 18 months, both before and during development of the proposal. This included public
86 Copy of letter, Appendix 86. 87 Copy of Director General's report, dated 18 January 1991, Appendix 87.
88 Copy of letter, Appendix 88. -52-
meetings, discussions with interest groups and community associations, continuing liaison with tangata whenua and regular contact with local body representatives. It should also be remembered that it was the public's response to the department's initial questionnaire that lead us to the Mercury Bay location.
2 A very large percentage of the objections was generated by the activities of one lobby group. This well organised and resourced group were kept in touch with our thinking throughout the development of the proposal, but no amount of logic or effort on our part was able to divert them from their mission - to actively oppose the establishment of a marine reserve at or near Hahei.
It is interesting to note that, very late in the piece, the group has conceded that their one real concern is the potential loss of opportunity to fish from small boats during easterly winds.
The Hahei Beach Users Action Group generated 84% of the objections, all but 13 of those being on a standard form distributed to over 3000 households. The Action Group's campaign was largely responsible for quite a significant response from areas away from the Coromandel - 40% of all objection came from Auckland, 23% from the Waikato (principally Hamilton) and another 13% from further afield. In other words, 76% of the objections came from outside the Coromandel Peninsula.
10% of the objections came from Hahei residents; 16% from Hahei, Cooks Beach and the surrounding areas.
Notwithstanding the level of objection generated, quite clearly there is considerable support for the proposal, with three times as many people for the reserve compared with those against. Letters of support continue to come in, including some from Hahei itself, but those received since 10 December 1990 are not included in the earlier "Answers to Objections" report.
3 The tangata whenua, Waikato Regional Council, Thames Coromandel District Council and Mercury Bay Community Board all support the proposal. Ngati hei say the proposal does not go far enough, while the TCDC says the proposal would gain wider support if the eastern boundary was redefined.
4 Observations of the holiday period, and conversations locally on a one to one basis with hOliday-makers and others, point to an acceptance that the reserve will go ahead. I believe people are tired of the debate and of the tactics deployed during the latter part of 1990 and the principal request to me was that locals in particular have an effective say in the management of the reserve. -53-
5 Having had the legal situation clarified, and being convinced that the proposal should proceed in some form, it seems to me that there are 3 options open to us.
• recommend the proposal as is
• recommend the proposal as publicly notified, but with an emended eastern boundary to exclude the whole of Hahei Beach
• recommend the proposal as publicly notified but allow limited forms of recreational fishing within a confined area at the eastern end of the reserve.
The objections process has not raised any issues that were not fully canvassed during the formative stages of this project and I am as confident now about the validity of the proposal as I was when it was formally notified. Conservation objectives demand a courageous, firm and prompt response at this stage of the debate and I would not like to see any lessening of our resolve. However, I am also conscious that the political forces at work here are real and it may be that in order to make progress we need to be seen to be responding in some way to the concerns raised.
My principal objective is to see the reserve established, even if that requires some form of concession, but a "no take" reserve is preferred for a number of reasons. Accordingly, my recommendation is that you adopt the second option.
6 The Minister has expressed the wish to visit the Coromandel Peninsula and see this particular area for himself before making a decision. I would firmly support such a visit, because the Minister needs to have first hand knowledge about what is proposed. After the lobbying that has taken place, Mr Marshall needs to be able to talk intelligently with his colleagues about the issues; I refer here not only to the Ministers of Fisheries and Transport with their concurrence roles, but also the local MPs (Messrs Bill Birch and Graeme Lee) whom I believe have been subjected to considerable lobbying.
We would be happy to make arrangements for a visit along whatever lines the Minister wishes. I would suggest flying to Whitianga and then proceeding by boat to the coastal area proposed for inclusion in the reserve. This could be done in not much more than half a day from either Hamilton or Auckland.
7 Finally, it is not really possible or prudent to try and cover the full gambit of issues and happenings in a report such as this and therefore, if there is to be a briefing session with the Minister, I would appreciate the opportunity to be included in the departmental team. " -54-
The issue of whether an Environmental Impact Report was required was raised
by Honourable Paul East through one of his constituents. 89 The Minister of
Conservation did not consider that a full Environmental Impact Report was
appropriate for the Cathedral Cove/Hahei application for a marine reserve in
view of the detailed statutory procedures that must be followed before an area
can be declared a marine reserve. The Minister was satisfied that the statutory
provisions of the Marine Reserves Act were sufficient for assessing the
impacts, if any, of marine reserves.
8.13 Commission of the Bridgeport Group
On 14 May 1991 the Bridgeport Group were commissioned by DOC Waikato
to prepare an independent report. Their brief was:
1 To make an independent report to the Minister of Conservation on the
Department's report to the Minister on its analysis of the objections with
particular respect to:
The application's compliance with the relevant provisions of the Marine
Reserves Act.
The appropriateness of the methodology used by the department in its
analysis.
89 Correspondence concerning Environmental Impact Report, attached as Appendix 89. -55- The accuracy of the analysis, the understanding being that this will be
tested by random sampling.
Bridgeport's assessment of the extent to which the department's
answers cover the objections raised dated 5 June 1991.90
The Bridgeport report was dated July 1991.91
The summary and conclusions of the report are stated as follows:
"6.0 SUMMARY AND CONCLUSIONS
In Bridgeport's view, the following are the main factors the Minister of Conservation should take into account in considering the action he should now take on the Cathedral Cove proposal.
General Matters
The justification for a marine reserve is based primarily on issues of national interest and the Department and those who support the proposal on these grounds have advanced strong arguments in favour of establishing the reserve. However, a significant number of people in the local community, while they support the concept of marine reserves, believe that the Cathedral Cove proposal, at least in its present form, would have unacceptable impacts on the coastal community and their recreational expectations.
The Director-General of Conservation, in making this application, has a dual role, as provided for in the Marine Reserves Act, as the applicant for establishing the reserve and also as the administrator of the Act. Because of this dual role, it is important that the Minister is fully assured that the proposal is soundly based and that it would be likely to withstand any challenge that may be made to it. This has led the Minister, on the
90 The Bridgeport Group to T Stephens, T Roxburgh, dated 5 June 1991.
91 Copy of Bridgeport Report. -56- recommendation of the Director-General, to seek, in terms of Section 5(6) of the Act, this independent assessment of the objections to the proposal and the Director-General's answers to these.
There has been extensive public consultation in the development of the proposal. Since the original concept was advanced, the boundaries of the proposed reserve have been significantly modified in endeavours to meet public concerns about its likely impacts. The Department's application, as well as its report of December 1990 to the Minister, cover the majority of the issues raised by those who are opposed to the proposal.
There are, in Bridgeport's view, some matters which warrant further consideration before the Minister makes a decision. Reference is made to these matters in paragraphs (d), (f) and (g) below.
(a) Procedure Followed by Director General of Conservation as Applicant
This action taken by the Director General of Conservation as applicant, in terms of Section 5 (1)(a) , (b), (c) and (d) of the Marine Reserves Act, complies with the statutory requirements.
(b) Procedure Followed by the Director General of Conservation as Administrator of the Marine Reserves Act
The action taken by the Director General of Conservation as administrator of the Marine Reserves Act, complies with the requirements of Section 5(2), (3), (4) and (5) of the Act.
(c) Department's Analysis of the Submissions
On the basis of a random sample of the Department's analysis of the objections made to the proposal, Bridgeport is satisfied that the analysis gives a reliable breakdown of the number of objections to, and the number of submissions in support of, the proposal.
The Department's analysis also gives a useful indicator of the dominant issues of concern to those who have made objections.
(d) Interpretation of Section 3 of the Act
An independent legal opinion should be sought on the interpretation of Section 3 of the Marine Reserves Act in relation to the Cathedral cove proposal and some of the matters raised in the objections to it.
(e) Adjoining Landowners, Navigation and Commercial Fishing -57-
The Department's answers in terms of the criteria outlined in Section 5(6) of the Marine Reserves Act relating to adjoining landowners, navigation and commercial fishing, cover the matters raised in the objections.
(f) Recreation and Public Interest Issues
There remain a large number of objections to the proposal from people in the Hahei community, and some from Cooks Bay, about what are seen to be the likely impacts of a marine reserve on existing recreational usage (in the widest sense of the term) and other matters of interest to local residents. The dominant concerns appear to be the effects of increased tourism (which the reserve would attract) and the loss of opportunities for recreational fishing. Most other concerns largely revolve around such issues as the inclusion of the western section of Hahei Beach within the reserve and the nature of the Department's commitment to provide for additional public facilities where it is established that increased usage is attributable to the reserve's establishment.
These concerns are held both by those who have made known their views by way of the standard objection letter produced by the Hahei Bay Users Action Group and by a significant number of others who have written their own objections.
The Department is concerned that some of the objections appear to be based on a misunderstanding orinadequate awareness of the nature of the proposal. It could be said that, as it is now less than eighteen months since the Cathedral Cove location was specifically selected as the proposed site, local people have been given rather too short a time to come to a full understanding of the proposal and its implications.
Discussions with the Department have given Bridgeport more information about, and a better understanding of, the action taken or contemplated by the Department to meet some of the concerns held by people who made objections. This expanded considerably the information given in the Department's application and answers to objections. However, Bridgeport does not have the local knowledge to make a judgement on the validity of the concerns still held in the local community or about what further action may be practicable to alleviate these.
Because of the number of objections, and for the reasons outlined above, Bridgeport's view is that the Minister should ask the Department to make a further review of the concerns held on matters relating to the criteria in the Act about recreation and the public interest.
(g) Future Timetable
Any action taken on the suggestions made in (d) and (f) above will influence the nature of further steps towards the reserve's establishment -58-
and the timing of the Minister's decision. In considering these matters it is important to weigh the appropriate timing for the publication of the Department's report of December 1990 to the Minister and the publication of Bridgeport's assessment.
It is Bridgeport's view that the Director-General's answers and Bridgeport's assessment should be publicly available either in advance of, or at the same time as, the Minister's decision.
7.0 RECOMMENDA TlONS
Bridgeport, on the basis of its assessment of the Cathedral Cove proposal, recommends that the Minister of Conservation
(a) obtains an independent legal opinion on the interpretation of section 3 of the Marine Reserves Act in relation to the proposal and some of the matters raised in the objections to it;
(b) asks the Director General of Conservation to make a further review of the concerns expressed in the objections on matters relating to the criteria in Section 5(6) of the Act concerned with recreation and matters of public interest;
(c) makes publicly available, either in advance of, or at the same time as his decision on the proposal, the Department's answer to the objections and Bridgeport's assessment. "
The Waikato Conservancy responded to the independent audit prepared by
Bridgeport in their own report. 92
92 Waikato Conservancy Response to Bridgeport Report, attached as Appendix 92. -59-
8.14 DOC Liaison with Ministry of Agriculture, Fisheries
Appendix 93 shows a time line of contact between DOC Waikato and MAF from
2 March 1990 to March 1991 prepared by DOC Waikato staff.93
This memo was formalised in a memo to Harry Broad from Gerry Rowan on 7
May 1992.94
Essentially MAF was involved at the initial public meetings in Whitianga, were
invited to be part of the initial consultation phase, were given draft marine
reserve application to consider together with formal application and meetings
were held between the staff at various occasions.
Various briefing documents from MAF staff to the Minister of Fisheries were
prepared and are annexed as Appendix 95. 95
The purpose of the consultation with MAF was for the Minister of Conservation
to seek the concurrence of the Minister of Fisheries to the marine reserve. The
approval of the Minister of Transport was also required by DOC.
In a letter to DOC (R Thorpe), A Hare (MAF) states:
93 Copy of time line, Appendix 93.
94 Memo to Harry Broad, executive assistant Minister of Conservation from G Rowan dated 7 May 1992.
95 Minister of Fisheries briefing notes. -60-
"Considerable consultation will be required to determine whether or not the proposal will interfere unduly with existing commercial fishing and recreational usage ... "
And that:
"At this stage it is probably sufficient to briefly comment that MAF Fisheries North has some reservations about the current Hahei proposal in that it may interfere unduly with the existing usage of the Hahei Beach area for recreational fishing by local residents and holiday makers. ,,96
Appendix 97 is a summary of a meeting held with Whitianga Commercial
Crayfishers on 4 June 1992 to discuss the proposed marine reserve with MAF
representative Bob Drey and DOC representative Tony Roxburgh. 97
In a letter dated 1 March 1990 from Rick Thorpe to Todd Sylvester, MAF
Auckland, inviting MAF to attend either or both of the public meetings at Hahei
and Whitianga Rick Thorpe described the:
". .. boundaries of the proposed reserve as being put forward by local residents and commercial crayfishers and that the boundaries had been reviewed by the tangata whenua, Ngati Hei and met with their approval. The area was also the most popular choice of people responding to our marine reserve questionnaire produced last year. ,,98
96 Letter to DOC R Thorpe from A Hore, MAF dated 19 June 1990.
97 Copy of meeting summary.
98 Letter from R Thorpe to T Sylvester, MAF, dated 1 March 1990. -61-
MAF indicated on 19 June 1990 that before it could make a comment or
support the proposed reserve it would:
"... be premature to make detailed comment on the specific Hahei proposal until the full background report outlining human activities and the biology/ecology of the area has been completed. In addition, in our view considerable consultation will be required to determine whether or not the proposal will interfere unduly with existing commercial fishing and recreational usage, as required by the MRA. ,,99
At that time MAF Fisheries North "has some reservations about the current
Hahei proposal in that it may interfere unduly with the existing usage of the
Hahei Beach area for recreational fishing by local residents and holiday
makers."
Appendix 100 is a copy of the MAF Fisheries, Auckland, report on the proposed
Cathedral Cove marine reserve. The purpose of the report being to provide the
information necessary for the Minister of Fisheries to make his decision on
concurrence. (Paragraph 1.2).100
An extract from the report states:
"4.1 Criteria
4.1.1 The Marine Reserve Act does not make explicit reference to those matters which the Minister of Fisheries must consider in
99 Letter from MAF dated 19 June 1990.
100MAF Fisheries North Report on the Proposed Reserve undated. -62-
giving or declining concurrence. However, it is logical to assume that the Minister would have particular regard to those criteria in Section 5(6) of the Marine Reserves Act which are associated with fishing activity, namely:
(c) interrere unduly with commercial fishing; (d) interrere unduly with or adversely affect any existing usage of the area for recreational purposes; (e) otherwise by contrary to the public interest.
4.1.2 This suggests that the Minister should have regard to the impacts that a marine reserve proposal would have on the rights of commercial, recreational and Maori fishers. In addition, the Fisheries Act (S.28B(5)) requires that consideration also be given to the effect that such a proposal would have on a quota management area.
4.1.3 It is evident that these considerations are relative in terms of determining whether a proposal would "unduly" affect a fishing activity or right. Obviously such considerations must be balanced against the wider benefits that may be derived from preserving he qualities of any particular site.
4.4 Recreational Activity
4.4.1 The Hahei/Cooks Beach/Hot Water Beach area has long been associated with recreational fishing activity, especially during peak holiday periods. Factors which help encourage this activity include the expanding tourist facilities in the area and the ready access that is provided to sheltered waters.
4.4.2 Hahei contains some 400 residential properties and a 300 site holiday Camp. At peak periods, anywhere from 30-60 boats may be moored in front of Hahei, depending on the weather. The most popular areas for fishing/diving appear to be the South Sunk Rock (outSide of reserve), Mahurangi Island (partially inside), Motueka Island (inside) and Motukorure (outSide). The fishing pattern for dinghies launched off Hahei Beach or for larger craft launched at the Cooks Beach ramps appears to consist of anchoring off the reefs around the above-named islands and drift fishing in the channels between the islands, whereas in strong northerly or easterly conditions, or when a large swell is running, many boats congregate inside of the islands.
4.4.3 While some recreational gill netting, longlining and rock lobster potting does occur in the vicinity, the predominant activity is line -63-
fishing. The major species caught are snapper (estimated 1/3 undersize), kahawai, trevally, kingfish and gunard. A number of local residents perceive that that area is currently depleted in respect of many of these species. Recreational diving is also a popular activity, both for sightseeing and rock lobster picking. School groups use the area as part of an outdoor skills and environmental education programme. There is a charter boat industry based in Whitianga, however, only one charter boat operator appears to patronise the proposed marine reserve area regularly.
4.4.4 It is axiomatic to suggest that sheltered waters, a diverse habitat, good access and a support infrastructure are all qualities which are seen as highly desirable for a number of activities, including certain forms of recreational fishing and marine reserve science/education. In situations where a high level of access is provided, it may also be said that these activities can often conflict with one another to the extent that one will diminish the value of the other and vice versa. The issue in this instance is whether the closing of a portion of waters in the vicinity of Hahei/Cooks Beach/Hot Water Beach to recreational fishing would constitute an "undue interference" with existing usage of the area for recreational activity.
4.4.5 Undoubtedly recreational fishing is currently a popular pastime in the area and can involve large family groupings. As noted, in settled weather it appears that the majority of fishers prefer to fish outside of the proposed marine reserve boundaries, however in rough conditions the reverse may be true as fishers are attracted to sheltered positions. The most sheltered position in the area is to the south west of Mahurangi Island during strong easterly conditions, which occur on average for about 19% of the year. This side of the island is now excluded from the proposed reserve. The south western sides of Waikaranga, Motueka and Moturoa Islands are in the proposed reserve, while Motukorure Island is largely outside. The result is that sheltered fishing would be provided for in the lee of two islands at either end of the proposed reserve, but would be denied behind some of the smaller islands in the reserve.
4.4.6 The proposed reserve incorporates 60-70% of the shallow diving area between Hahei and Cooks Beach. This would serve to limit the area available for crayfish diving and mussel collection, however there are alternative, less accessible areas available to the north of Motukorere Island and to the south and east of Mahurangi Island. Divers who prefer underwater exploration or photography may find their activities enhanced by this proposal. Surfcasting from Hahei Beach will not be affected. -64-
4.4.7 Suggestions were made by some recreational fishers that the proposed boundaries should be modified to exclude all of Mahurangi Island from the reseNe. It is claimed that this would provide more shelter for fishing and diving during easterly conditions. On the other hand, the Department of ConseNation claims that the immediate area to the west and north of Mahurangi Island contains a diverse range of habitat and spectacular underwater scenery that is accessible, particularly for those who land on the island.
4.4.8 A number of requests have also been made for consideration to be given to the creation of a recreational fishing area or "marine park" in the vicinity instead of or in addition to the proposed marine reseNe. The National Policy for Marine Recreational Fisheries suggests that preference will be given to non commercial fishing in areas readily accessible to and popular with the public and where a species is not sufficiently abundant to support both non-commercial and commercial fishing. At this stage the intention is for MAF Fisheries North to monitor the effects of a proposed restricted fishing area in the Bay of Islands to determine whether such a regime could bring benefits elsewhere.
4.5 Treaty of Waitangi Issues
4.5.1 Tangata whenua for the area are Ngati Hei, as represented by the Ngati Hei Trust and the Hauraki Maori Trust Board. In tracing their whakapapa, the Hahei area has many important spiritual and historical associations for Ngati Hei.
4.5.2 The Ngati Hei Trust Board support the proposed marine reseNe as a way of protecting their important taonga by essentially placing a permanent rahui over it. The Board, in a letter to the Minister, suggests that it would strongly resist any changes to proposed boundaries.
5. Conclusions
5.1 The results of investigations and consultations which have taken place seNe to confirm that the south-eastern side of Mercury Bay has considerable merit as a possible marine reseNe because of the area's physical and biological attributes. While the goals of establishing a marine reseNe in this vicinity have not been clearly articulated by the applicant, it can be concluded that such an action would be consistent with the purposes specified in Section 3(1) of the Marine ReseNes Act 1971. -65-
5.2 It is considered that the level of interference with the overall pattern of commercial fishing occurring in the Quota Management Area (CRA 2) and the statistical area (S.A. 906) is relatively minor. However there is likely to be a significant impact on at least one commercial rock lobster fisher who catches approximately 80% of his quota from within or around the area proposed as a marine reserve. In this case the establishment of a marine reserve could render this individual's TTQ rights ineffective, at least in the short to medium term. Therefore the possible harm to this fisher must be balanced against the good to the general public in creating this marine reserve. If it can be achieved without harming the fisher or if his loss can be mitigated then that option should be chosen.
5.3 The existing recreational usage of this attractive, accessible area has been the focus for much discussion. The original concept was modified before the marine reserve was formally proposed in order to provide for recreational fishing adjacent to Hahei. The Minister of Conservation, in making his decision, altered these proposed boundaries to further accommodate the concerns of recreational fishers. It is considered that these changes now adequately provide for recreational fishing activity in the vicinity. In this respect there are and will be a mix of recreational activities occurring in this highly desirable area. Some of these activities will be mutually exclusive in the sense of requiring separation in order to adequately provide for special needs of each group. The form of separation that would be provided by this proposed marine reserve, in its amended form, appears to be a reasonable compromise. It is also interesting to note that the Planning and Development Committee of the House of Representatives has found that these boundary adjustments satisfy the concerns of two petitions in this regard.
5.4 It would appear that the Treaty of Waitangi implications of this proposal have been adequately addressed by the applicants. Tangata whenua for the area, the Ngati Hei, have given their strong support to the concept of a marine reserve at Hahei.
5.5 In summary, it is concluded that the proposal:
• would not have a significant impact on a quota management area (S.28(b)5);
• would not interfere unduly with commercial fishing overall, but would interfere unduly with the activities of a rock lobster fisher;
• would not unduly interfere with or adversely affect any existing usage of the area for recreational purposes; -66-
• would be in the public interest because the proposed marine reserve has considerable merit.
6. Legal Advice
6.1 MAF sought legal advice from MAF Fisheries (Head Office) Legal Section on the following two matters:
6. 1. 1 Is the Minister entitled to consider the impacts that a marine reserve proposal would have on an individual fisher rather than on the collective fishing industry?
6.1.2 Is the Minister able to give qualified approval to the proposal subject to the impacts being mitigated for the commercial rock lobster fisher directly affected?101
6.2 The Legal Section has advised as follows:
6.2.1 The Minister is entitled to consider the impacts of a marine reserve proposal on individual fishers. While the Marine Reserves Act is not specific on those matters which the Minister of Fisheries must consider in giving concurrence, the obvious purpose of concurrence is so that the Minister may give due weight to any of those matters for which he is directly responsible. This would include the circumstances of individual fishers, especially where an ITO or TTO is involved. While there is no legal requirement for compensation to be paid in cases such as this, the Courts have taken the view that those who benefit (i.e. the public) should compensate those who make a loss. In this way the Minister could be directed to consider paying compensation.
6.2.2 The Minister does not have the power to give qualified approval. He has to concur or decline to concur. In this case concurrence could be declined, but it could be made clear that if the fisher's loss were to be mitigated then another request for concurrence could be looked upon favourably. Mitigation could possibly take one of several forms and may not necessarily involve modification to the currently proposed boundaries, but this could be a matter
101 Letter to Legal Section MAF Head Office from A Hore, MAF Fisheries North dated 31 August 1992. -67-
for negotiation between the Minister of Conservation and the affected fisher. 102
7. Petitions
7.1 Three petitions have been considered by Parliament in respect of this proposal. Advice given by the Chairman of the Planning and Development Committee refers to one of these petitions as still being unresolved.
7.2 At this stage it is unclear when a recommendation will be formulated on the outstanding petition or when all three petitions will be formally reported back to Parliament. It may not be appropriate for a final decision to be made on concurrence until this process has been completed. On the other hand, this interim period could be used to discuss matters of concern outlined in this
report with the Minister of Conservation. II
DOC Waikato also prepared a report to the Minister of Conservation concerning
additional information required on the proposed reserve boundary and the
impact on the commercial fisher. 103
Appendix 104 is a chronological sequence of events/public consultation leading
to the establishment of the marine reserve by DOC. Page 7 of that sequence
of events refers to answers to specific questions raised by Mrs Mary Bowers
(an objector to the proposal who petitioned the House of Representatives and
also laid a complaint regarding the marine reserve to the Regulations Review
102 MAF Head Office (K Mcllveney, Solicitor) to A Hore dated 10 September 1992.
103 Appendix 103. -68-
Committee).104 Appendix 103 shows the steps required for marine reserve
Gazettal and opening of the Cathedral Cove marine reserve. 105
8.15 Petitions: C R Harsant and Others
In 1990 Charlie Harsant filed a petition on behalf of himself and others to the
Planning and Development Committee, praying that the house call on the
Department of Conservation to apply a more reasoned approach to the precise
siting of the Hahei Marine Reserve.
On 20 November 1992 the office of the Clerk of the House of Representatives
advised Charlie Harsant that:
"The chairman of the committee reported the petition back to the House of Representatives on 17 November 1992 with the recommendation that the report be referred to the Government for consideration with the fol/owing rider:
The Planning and Development Committee have considered the original boundary proposal and subsequent amendments to it. Having heard the evidence, the Committee is satisfied that a marine reselVe is appropriate for this area. The Committee strongly supports the reasonable accommodation of the interest of aI/ parties in settling the final boundary adjustments.
The report was accepted by the House. ,,106
104 Appendix 104. 105 Appendix 105. 106 Letter to C Harsant from house of Representatives dated 20 November 1992. -69-
In reference to this petition, Andrew Jeffs, Marine Reserves, in a memo to Tony
Roxburgh dated 29 March 1990 stated that:
"The Harsants seem to be creating lots of bad vibes on this proposal with the media, public meetings and this petition. They are becoming self appointed leaders of a opposition group battling with the weight of bureaucracy - bound to get public sympathy. I would suggest you talk to Catherine Delahunty about coming up with a strategy for dealing with this situation so that the Harsants don't end up being backed into a corner and opposing the reserve just for the sake of it. 107
The Director-General of DOC in a letter to the Chairman of the Planning and
Development Committee concerning the petition and that:
"DOC is endeavouring to obtain some preliminary public comment on the proposed marine reserve through public meetings and contact with resident and transient users. These comments will be taken into account before any formal application is made for an Order in Council declaring the area a marine reserve under section 5 of the Marine Reserves Act 1971. ,,108
The Director-General recommended to the Committee that:
(1) It acknowledge the petition from Mr C R Harsant and others.
(2) Advise the petitioners that their concerns have been noted and will be
taken into account in formulating any formal applications for a marine
reserve.
107 Copy of memo attached as Appendix 107.
108 Copy of letter attached as Appendix 108. -70-
(3) Advise the petitioners that the Marine Reserves Act 1971 provides a
statutory right for objection to any marine reserve proposal that may
eventuate and which must be publicly notified.
8.16 Complaint of Mrs Mary Bowers regarding the marine reserve (Whanganui a Hei
Cathedral Cove Order 1992)
A copy of Mrs Mary Bowers' submissions in support of her complaint are
annexed as Appendix 107. 109
Appendix 108 is a copy of the report of the Regulations Review Committee who
considered Mrs Bowers' complaint. 110
The complainant's evidence focused largely on the non statutory consultation
process undertaken by the Department prior to the Director-General's
application (page 6). In particular, Mrs Bowers and supporting witnesses felt
that the Department should have made more personal contact with Hahei
residents and ratepayers, and have paid more attention to their concerns. They
considered that, having undertaken this non statutory process, the Department
operated to a "hidden agenda", did not discuss issues and proposals directly,
and generally had an unsympathetic and unflexible stance regarding opposition
to the marine reserve. The Committee's conclusions were:
109 Copy of submissions Appendix 109.
110 Regulations Review Committee report. -71-
"15. Having considered the evidence carefully, the committee believes that the complainant has not demonstrated a failure by the applicant or the Director-General to comply with the formal procedures set out in the 1971 Act.
16. Standing Order 413(1 )(h) relates specifically to statutory consultation, rather than to the general adequacy of any consultation undertaken. However, it is clear to the committee that the non-statutory consultation undertaken by the department was not sufficient to satisfy a substantial proportion of the local community at Hahei, particularly in relation to issues of beach use and access and sheltered fishing for small boats.
17. The department and the Minister may care to review the boundaries of the marine reserve to see whether the residents' concerns can be accommodated. In particular, the committee recommends to the Government that the Department of Conservation monitor the marine reserve to see that the residents' concerns about the future do not arise in practice.
CONFLICT OF INTEREST
18. The committee questioned the process, set out in section 5 of the 1971 Act, for declaring an area to be a marine reserve. There appears to be a conflict of interest for the department, or at least, the perception of such, when the Director-General is the applicant. For example, the department:
• advises the Director-General on the proposal to establish a marine reserve;
• scrutinises the Oirector-General's application to determine if it complies with the 1971 Act's requirements;
• advises the Minister of appropriate persons if the Minister wishes to obtain an independent assessment;
• advises the Minister on any queries regarding the application, the objections, and the independent report; and
• provides the Director-General with information gathered during the non-statutory consultation process as part of the Director General's answer to objections to the application.
The committee feels that this perception of the Director-General's conflict of interest may be compounded by the fact that the Minister's decision is non reviewable. -72- 19. The department stated that where advice is required in a situation with a potential conflict of interest the matter is referred to its legal section. This section is internally separate from the section advising the Minister. However, to objectors this distinction is hardly significant or persuasive.
20. The committee notes that the Marine Reserves Amendment Act 1977 amended section 5 to allow the Director-General to be an applicant. Section 5(6) was also amended to require the Minister to consider any independent report on the objections and application which the Minister may have obtained. The committee asks whether different safeguards might now be more appropriate where the Director General is the applicant.
21. Witnesses have told the committee that objectors to the application by the Director-General believe that the statutory process is undesirably structured against them. The complainant also stated that the department was critical of opposition to the marine reserve. The committee notes that objections are an important and inherent part of public input to the statutory consultation process and considers that this raises issues of the department's role in the statutory process when the Director-General is the applicant. For any other applicant, the process requires the department to prepare a plan and to regulate the process by ensuring that requirements are complied with and objections and answers conveyed to the Minister. Gathering support for a marine reserve, making public comment on opposition to the reserve and advising the Minister on the issues raised by the Director-General's application aI/ appear to suggest quite a different role.
22. The committee notes that the Conservation Act 1987, also administered by the department, makes provision for Conservation Boards. These boards have jurisdiction over specified areas and advise on conservation management strategies and plans. Members are appointed, on nomination, by the Minister. The committee considers that similar bodies may assist in providing local, independent and representative advice to the Minister in circumstances where the Director-General is the applicant for the declaration of a marine reserve.
23. The committee considers that the present consultation process inadequately takes account of the problems inherent in this conflict of interest situation. The committee has, therefore, resolved under Standing Order 412(3) to draw this matter to the notice of the House. The committee recommends to the Government that it consider the need to amend the Marine Reserves Act 1971 to provide for mandatory, independent appraisal where the Director-General of the Department of Conservation is the applicant for a marine reserve." -73-
The recommendations being:
"1. The Regulations Review Committee brings several matters relating to the Marine Reserves (Whanganui a Hei (Cathedral Cove) Order 1992 to the notice of the House under Standing Order 412(2)(c). The committee has examined this regulation and recommends to the Government that:
• the Department of Conservation monitor the marine reserve to see that the residents' concerns about the future do not arise in practice [para. 17J;
• it consider the need to amend the Marine Reserves Act 1971 to provide for mandatory, independent appraisal where the Director-General of the Department of Conservation is the applicant for a marine reserve [para. 23J; and
• the Marine Reserves Act 1971 be reviewed in order to:
a. improve public participation and consultation;
b. possibly harmonise it with other Department of Conservation legislation, such as the Conservation Act 1987; and
c. consider the criteria applicable to the exercise of the Minister's discretion regarding objections under section 5 [para. 26}."
A copy of the submissions from DOC are annexed as Appendix 111 dated 2
June 1993.111
111 Appendix 111. -74-
A memo from Kathy Walls to Tony Roxburgh, Waikato Conservancy being
DOC's response to the Regulation Review Committee's recommendations as
attached as Appendix 110. 112
On 27 October 1992 Kathy Walls, Head Office, DOC in an electronic mail
message to Gerry Rowan referred to the Select Committee on Cathedral Cove
and:
"The only possible fly in the ointment is the deliberations of select committee. I don't think they will take much time in reporling back to the House, so I don't believe there will be a significant delay there. What I'm not sure of is their analysis of the situation from the perspective of the petitioners' concerns over recreational fishing. ,,113
Following the Regulation Review Committee's findings Waikato Regional
Conservator, Dr Stella Penny, indicated to the media that:
"The Deparlment was unlikely to consider a review (of the reserve's boundaries in light of local concerns about beach access and fishing in the area) at this stage. ,,114
112 Appendix 112.
113 Copy of electronic mail message, Appendix 113.
114 Copy of newspaper clipping, 24 September 1993, "This Week". -75-
Following the review committee's findings a survey was sent to
residents/ratepayers by the Department of Geography, University of
Auckland. 115
Correspondence was also forwarded to the Minister of Conservation by the
Hahei Beach Users Group Committee (letter dated 28 July 1994) requesting
information about what action DOC has taken to review the boundaries as
recommended by the Regulations Review Committee. 116
Correspondence was also sent to the Chairman of the Regulations Review
Committee expressing concerns about the delay and implementing the
recommendations of the Committee in March 1994. 117
8.17 Contact with Ngati Hei
DOC's position from the outset has been that the Tangata Whenua in the area
fully supported the marine reserve.
DOC identified Ngati Hei as being the Tangata Whenua in the area and
proceeded to consult with Ngati Hei to a certain degree to the exclusion of
other Maori resident in the area.
115 Copy of survey, Appendix 115.
116 Copy of corresopndence, Appendix 116.
117 Copies of correspondence, Appendix 117. -76-
The following is a description of contact with Ngati Hei by DOC.
The Ngati Hei Trust Board on 9 December 1989 wrote to Rick Thorpe
concerning a meeting in Whitianga on 10 November 1989.118 The
recommendations from that meeting being:
"1 A marine reserve be set up from Cathedral Cove South.
2 One large reserve or perhaps several smaller ones be formed.
3 The reserve's boundaries not be fixed at all times but after five or ten years when depleted stocks had regenerated in the area, that the reserve be moved to help regeneration in other areas."
Appendix 119 shows extracts from submissions received concerning the
historical features of the area and discussions with Ngati Hei and DOC. 119
On 29 August 1990 Tony Roxburgh forwarded a draft application for a marine
reserve to Mrs Pat McDonald of the Ngati Hei Trust in Auckland. 120
DOC Waikato acknowledged the essential nature of having Ngati Hei approval
of the final package (electronic mail from Alan Edmonds to Gerry Rowan dated
31 August 1990).121
118 Copy of letter, Appendix 118. 119 Appendix 119. 120 Copy of draft application.
121 Copy of e-mail message, Appendix 121. -77-
On 8 November Rick Thorpe made a file note of a meeting between Ngati Hei
and DOC on 21 October at Whitianga. 122
Correspondence also exists concerning liaison with Ngati Hei over the naming
of the marine reserve (Appendix 121 ).123 On 5 June 1992 Gerry Rowan wrote
to Barbara Francis, the secretary of the Trust concerning the proposal
commenting:
"1 expressed (at a previous meeting) our (~OC) strong desire that the marine reserve extend in a south easterly direction to take in al/ of Hahei Beach and include the waters around Hereheretaura Peninsula. We knew that Hereheretaura was important to Ngati Hei and we wanted to accommodate that, but I explained to you all then the politics of the situation that could see the whole project defeated by local interests if we held to that line.
As a result we formally notified the reduced proposal and made it clear to the Minister that while the tangata whenua generally supported the establishment of the marine reserve they felt it did not go far enough. As it is, the opposition from some people at Hahei has been so intense that the Minister has decided to exclude any part of the beach. I am not happy with this and I knew Ngati Hei would not be, but I am very clear in my own mind that a slightly modified marine reserve is immeasurably better than no marine reserve at all. ,,124
Ngati Hei responded on 12 June 1992 to the Minister of Conservation
commenting that:
122 Copy of file note of meeting, Appendix 122.
123 Appendix 123.
124 Copy of letter, attached as Appendix 124. -78-
"The motivation and spiritual aspect of Ngati Hei as tangata whenua in agreeing to the formation of the marine reserve area located at this historic site has been entirely understated or even ignored by your department, especially the "Bridgeport Group" and we take this as a personal affront. This project, could never have even started had we not given our approval in the first instance, and this was done only after careful consideration of the proposal, its location, its exact boundaries, the effects and impacts it would have on the general public and on our rights under Article 2 of the Treaty of Waitangi. After several discussions with members of DOC both from Hamilton and Wellington we agreed to the concept, acknowledging mean time, that the wider public interest was paramount in this instance and we would prefer to (forego) our self interest and rights guaranteed under the Treaty. ,,125
The Minister of Conservation responded on 29 July 1992 acknowledging the
original support given by Ngati Hei. 126 With respect to Ngati Hei's comment that
the Bridgeport Group had not consulted with them the Minister replied that:
"As part of the report, Bridgeport Group analysed the objections to the application and whether those objections had been adequately dealt with. Because no objection was lodged by Ngati Hei, the consultants did not include the matter of Ngati Hei's concerns over the area of the beach to the Hereheretaura Point not being part of the application."
In response, Ngati Hei on 21 August 1992 to the Minister of Conservation
commented:
"We do not see that a reduction in area is the only available option open to you as Minister. In balancing the needs and interests of all who have an interest in the area. What relevance does Article 2 of the Treaty of Waitangi have in reaching that decision? How has our rangitiratanga been preserved when a decision such as this has been made on the grounds of
125 Ngati Hei to Minister of Conservation, dated 12 June 1992.
126 Minister of Conservation to Ngati Hei dated 29 July 1992. -79-
self interest and needs of a minority group, who are not tangata whenua and who have not been guaranteed any pre-emptive right to have unrestricted fishing and sailing or recreational activities to any beach when they purchase sections in this area?,,127
With respect to the Minister's comments that Ngati Hei did not file an objection
they commented:
"Our response to that is that we were unlikely to object to our own decision to have a marine reserve. The boundaries shown here were only suggestive or tentative at the time. No true objection process was contemplated by us as we believed in the concept from its inception.
Hence no objection."
On 15 July 1992 Gerry Rowan wrote to Murray Grant, Ministerial Servicing Unit
concerning the Ngati Hei Trust and the issues that had been raised in previous
correspondence.
He commented on the "particularly important relationship with Ngati Heitl and
that (DOC and Ngati Hei):
"... have shared interests in quite a number of areas, not only have they supported this marine reserve initiative and been an active player in the Otama Sand Dune debate, but we are liaising with Ngati Hei on our important rat eradication projects involving both the Mercury and Aldermen Islands groups and negotiating with them for conservation opportunities on a number of important islands they currently (or soon will) administer."
With respect to Bridgeport he commented:
127 Ngati Hei to Minister of Conservation 21 August 1992. -80-
"In fairness to Bridgeport, they were not asked to examine whether the views of tangata whenua were adequately recognised. The Minister was apparently satisfied with the manner in which the department addressed Maori issues and, with no objection having been lodged by Ngati Hei, Bridgeport could not include this element in its evaluation of whether al/ the objections had been adequately dealt with."
In response to Ngati Hei's concerns Gerry Rowan put forward the following
framework as a suggestion for a response to tangata whenua:
1 No further reduction in the size or scope of the reserve.
2 The opportunity be given for an appropriate Maori name to be applied
to the reserve.
3 Effective involvement and participation by Ngati Hei in the management
of the reserve (through the Management Committee).128
The claimant does not have any knowledge of any members of Ngati Hei living
in the Hahei area. (Clause 11.2, Statement of Claim).
As this claim has been brought by the claimant as an individual Maori who has
not alleged he is of Ngati Hei (being the "Tangata Whenua" identified by DOC)
the level of contact between DOC and Ngati Hei is of limited value in this
particular claim.
128 Copy attached, Appendix 128. -81- Following receipt of the claimant's claim, a letter dated 4 December 1992 was
forwarded to the writer by the office solicitor for the Director-General which
stated that:
"You will be aware the Marine Reserves Act 1971 is one of the enactments referred to in the First Schedule of the Conservation Act. That being so there is an obligation on the Department of Conservation to administer and interpret the Marine Reserves Act so as to give effect to the principles to the Treaty of Waitangi.
In dealing with this application the Department has been conscious of that obligation from the very outset and has given effect to the requirements of the Act in that regard. In addition to that obligation, the Act itself contains a statutory process of public consultation and lays down clear criteria which the Minister must have regard to in deciding whether to uphold any objection.
I should also point out that before the formal application was lodged there was an extensive process of consultation carried out within the community, including iwi.
So far as the Department of Conservation is concerned consultation with interested groups in respect of this particular application have been comprehensive and have fulfilled the Department's responsibilities under the Marine Reserves Act, including its responsibility to give effect to the principles of the Treaty of Waitangi. ,,129
In a note written on the DOC Waikato copy of this letter, Gerry Rowan has
stated that:
"1 am surprised that this does not talk about the Tangata Whenua aspectslNgati Hei, etc. ,,130
129 Copy of letter, Appendix 129.
130 Copy of letter, Appendix 130. -82-
Clearly the iwi referred to in the office solicitor's letter refers to Ngati Hei as there is no record of any other iwi group being consulted from DOC records.
Gerry Rowan's comments pOints to DOC's clear view that the only Tangata
Whenua they needed to consult was Ngati Hei and that even once a Waitangi
Tribunal claim had been received from an individual Maori (of Ngapuhi descent)
they were of the opinion that they had fulfilled their consultative requirements
to "Tangata Whenua".
In reality, of course the claimant was another Tangata Whenua residing in the
area who happened to be of descent other than Ngati Hei. -83-
9.18 DOC: Tangata Whenua Issues
Appendix 32 refers to the list of talks that DOC produced as given to interest
groups concerning the proposed reserve.
Also attached are copies of summaries of meetings held as follows:
1 Appendix 131 - a summary of public meeting held at Hahei Community
Centre on 18 July 1992 to discuss the proposed Cathedral Cove Marine
Reserve·,131
2 MAF minutes of fishers' meeting at Hahei 18 July 1992;
3 Appendix 132 - Minutes of the first meeting of the Te Whanganui a Hei
Marine Reserve Committee held at the Hahei Community Hall on Friday,
26 November 1993., 132
4 Appendix 133 - Minutes of the second meeting of the Te Whanganui a Hei
Marine Reserve Committee held at the Hahei Community Hall on Friday,
11 February 1994. 133
131 Summary of public meeting held at Hahei Community Centre on 18 July 1992, Appendix 131.
132 Minutes of the first meeting of the Te Whanganui a Hei Marine Reserve Committee held at the Hahei Community Hall on Friday, 26 November 1993.
133 Minutes of the second meeting of the T e Whanganui a Hei Marine Reserve Committee held at the Hahei Community Hall on Friday, 11 February 1994. -84-
At the meeting held in Whitianga and Hahei DOC invited Dr Bill Ballantine,
Leigh Marine Laboratory (Appendix 132)134 Graham Olsen, Federation of
Commercial Fishers (Appendix 133)135 Jeff Cobb, General Manager, Thames
Coromandel District Council (Appendix 134).136
Following the receipt of a copy of the present claim by W A Ngawati and
enclosures from the Waitangi Tribunal Tony Roxburgh made contact with the
Hauraki Maori Trust Board and requested from them a letter that supports the
iWi/tangata whenua status of Ngati Hei.137
In response a letter from Hauraki Maori Trust Board was received on 4
December 1992 stating that:
"1. The Hauraki Maori Trust Board supports fully the efforts of Ngati Hei in this regard and acknowledges Ngati Hei's rights of rangatiratanga which have never been extinguished." 138
The Estate Protection Policy Division of DOC wrote to the Waikato
Conservancy on 12 March 1993 requesting details relating to the Marine
134 Appendix 134. 135 Appendix 135. 136 Appendix 136. 137 Telephone conversation details within files held at DOC Waikato. 138 Appendix 138. -85-
reserve, including consultation with tangata whenua. 139 A memo detailing liaison
with tangata whenua of Mercury Bay was prepared. 140
This resulted in a memo from Tony Roxburgh to Kathy Walls, Marine Protected
Areas Unit detailing contact with Ngati Hei from 16 April 1989 to 2 February
1993. 141
Appendix 142 is a copy of an article from the Waikato Times on March 25,
1993 concerning the filing of the present claim.142
10 Conclusions and Issues for Consideration
Clearly DOC is responsible for the administration of the MRA and has been
engaged in a publicly stated plan to increase the number of marine reserves
around the New Zealand coastline.
The correspondence noted above from DOC raises a number of issues:
(1) The pre-notification consultation process.
139 Appendix 13. 140 Appendix 140. 141 Appendix 141.
142 Appendix 142 .. -86-
Whilst acknowledging that this consultation process is "non statutory",
it was still the only form of consultation that the claimant and other
people objecting to the marine reserve proposal were able to participate
in to have their views heard.
After considering correspondence from DOC it is questionable whether
the value of this consultation process had any bearing on DOC's clear
plan to establish a marine reserve at Hahei/Cathedral Cove.
It would appear that this intention was clear at a much earlier stage
than was acknowledged publicly.
(2) Tangata Whenua Consultation
The claimant has stated in his statement of claim that the policies/acts
of the Crown as listed in his statement of claim are contrary and
inconsistent with the two texts and principles of the Treaty of Waitangi
1840.
He has alleged that he has not been consulted by DOC as one of the
Tangata Whenua living in the area and that the marine reserve
prejudicially affects him by prohibiting the taking of any kaimoana from
the reserve area and restricting the areas the claimant is able to fish in
which results in the claimant not being able to fully exercise his life -87- choice to reside in the Hahei area and continue to fish and collect kaimoana (Clause 14, Statement of Claim).
The claimant goes on to state that in terms of Article 2 of the Treaty of
Waitangi the proposed marine reserve would deny him full exclusive and undisturbed possession of the fisheries which he desires to retain the use of. (Clause 16).
The claimant has made his claim to the Waitangi Tribunal as an individual Maori as he is permitted to do pursuant to section 5 of the
Treaty of Waitangi Act 1975.
The Department of Conservation responded to the claimant's claim by stressing their contact with Ngati Hei and confirming through the
Hauraki Maori Trust Board that Ngati Hei were Tangata Whenua of the area in question.
Be that as it may, there is no statutory requirement in the Treaty of
Waitangi Act for a claim to be brought by a "Tangata Whenua" of the area or for the claimant to be related to the subject matter or area of the claim in any way. -88-
What is of importance and relevance is whether the Department of
Conservation satisfied their statutory duty to take into account the principles of the Treaty of Waitangi in the administration of the MRA.
The claimant states that the Minister of Conservation (and his agents/officers) did not apply or take into account the principles of the
Treaty of Waitangi as follows:
(a) He did not take into account the claimant's or any other Maori
person's right to control/utilise their own resources (being the
Cathedral Cove/Mercury Bay area in terms of the proposed
reserve) as my/their own.
(b) He requested the Governor-General authorise an Order in
Council to formalise the creation of the Cathedral Cove/Mercury
Bay reserve without taking into account any of the relevant
articles/principles of the Treaty of Waitangi.
(c) He did not adequately consult with or give proper notice to the
claimant and other Tangata Whenua in a manner consistent
with the Crown's partnership obligations under the Treaty of
Waitangi. -89-
Issues for the Tribunal to consider are, after considering the legislative provisions described above did the provisions afford to the protection of his interests with respect to fishing/collecting kaimoana as provided for in the
Treaty of Waitangi? And further:
What duties did the Department of Conservation owe to Maori in the area
whose interest would be affected?
Did the Department of Conservation breach those duties?
After searching the relevant files at the Department of Conservation, Waikato, there does not appear to be any indication of consultation taking place with any other Maori groups or individuals (including the claimant) apart from contact described with Ngati Hei.
Accordingly, the claimant, as tangata whenua also (albeit arguably not from the
"area", but tangata whenua nonetheless) was not consulted by the Department of Consultation over the establishment of the proposed marine reserve, nor were his interests taken into account.
As a result the claimant's only form of objection to the proposed reserve was as a member of the general public who discovered there were to be public meetings in his area (at a late stage in the proposal formation process). This form of consultation it is submitted, was of limited value as the Department of -90-
Conservation clearly had a proposal in mind forthe Cathedral Cove/Hahei Area.
All objections to the proposed marine reserve were discounted by the Minister
of Conservation. Further, the MRA does not provide any right of appeal or
redress to those objecting to proposed marine reserve.
10.1 Consultation Process
The exact nature of the meetings held to discuss the proposed marine reserve
vary according to the recollections of those who attended. An issue for the
Tribunal to consider is whether the public meetings, which were chaired by the
Department of Conservation staff, addressed by speakers brought in by the
Department of Conservation, were a satisfactory means of addressing the
claimant's interests in terms of the Treaty of Waitangi.
Noticeably absent was any form of participation by the claimant in the form or
content of the meeting.