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Cathedral Cove/Mercury Bay Marine Reserve

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Cathedral Cove/Mercury Bay Marine Reserve 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
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