Environmental Assessment of Concessions for Tourism and Commercial Activities under the Conservation Act 1987

Johnson, S. and Lloyd, K. 2002.
4 Butterworths Resource Management Bulletin 100-105.

In this article Simon Johnson and Kelvin Lloyd examine the process of approval of tourism and commercial concessions under the Conservation Act 1987 and suggest that it can usefully be viewed as a form of environmental impact assessment. They describe examples of unsatisfactory performance of the statutory tests required to be applied by the Department of Conservation, and conclude that the process often falls short of both the legislative requirements and general standards of environmental assessment methodology. Simon Johnson is a compliance monitoring officer with Environment Canterbury and Kelvin Lloyd is a botanist with Landcare Research and an executive member of Federated Mountain Clubs Inc.

Introduction

• inconsistent policies and decisions;
• failure to set stringent limits;
• poorly scrutinised applications;
• inadequate consultation;
• an inability to refuse applications which do not adequately protect conservation values; and
• "creeping" and "insidious" cumulative effects of many individual decisions.

The conservation estate covers around 8 million hectares or about one third of New Zealand's land area. The Minister of Conservation can approve applications for a wide range of activities, or 'concessions', within conservation areas pursuant to Part IIIB, s 17O to s 17ZJ of the Conservation Act 1987 ("CA"). These sections provide a series of hurdles or statutory tests that a concession application must pass before it is approved.

Our key point is that these tests are not always adequately performed and that this explains the concerns expressed to the PCE. We base this conclusion on the analysis of a number of concession decisions. We consider that the concession approval process could be markedly improved by viewing it as an environmental impact assessment process and applying good practice criteria developed by the PCE for the Resource Management Act 1991 ("RMA").

We give specific examples of poor performance of several of the statutory tests. We argue that specific tests, allowing the "technical knockout" of concession applications due to inconsistency with conservation management strategies, or the purpose of conservation, are poorly performed in favour of a focus on effects tests that are also inadequately performed. In the following paragraphs we describe the reports in the concession approval process, the effects tests and the technical knockout tests.

The concession approval process

Figure 1. Summary of the concession approval process. All references are to sections of the Conservation Act 1987 unless stated

1. Discuss proposal with DOC concessions staff
2. DOC will supply potential concessionaires with an application pack and guide notes
3. The application shall specify the type of concession (s 17Q1, s 17S1d)
lease	licence	permit	easement
Lease and licence applications have to be publicly notified following s 49 (s 17T4)		Permits and easements may be notified (not mandatory) following s 49 if appropriate re effects (s 17T5)
4. DOC may require additional information or an environmental impact assessment (EIA) from applicant s 17S(3)
5. DOC instructs applicant to consult iwi (S.4)
6. Statutory tests (see Figure 2 flowchart) DOC staff summarise the application, any EIA, requested information and statutory tests into "Approval in Principle" report
7. DOC will supply the approval in principle report to the applicant for comment (s 17S5)
8. Public notification and submissions DOC gives 40 working days notice of closing date for submissions (s 49(2)(b)). Submitters may request hearing (s 49(2)(c)).
9. "Report to Approve Concession" Minister (delegate) considers report to accept or reject submissions (S.49.2(d) & (e))
10. The concession applicant is informed of the grant or decline of the concession and its conditions

The concession approval reports

This structure of a draft report, notification, submissions, hearings and a final report by a decision maker is typical of environmental impact assessment processes. However, although the approval in principle report is based on a template of the statutory tests shown in Figure 2, the report to approve is often structured as a response to submissions under s 49(2)(d), the section that describes a general process for public notification, submissions and hearings for DOC.

This has two consequences. Firstly, as the two reports do not have the same headings it is hard to see how the submissions have affected consideration of the statutory tests. Secondly, reports to approve sometimes appear to consist of a list of reasons why submitters' concerns are being ignored in favour of an apparently predetermined decision. This is not helped by concluding statements such as:

[I]n my view appropriate care was taken (with the design of a shelter on the Routeburn Track) prior to the application being lodged and there are no compelling reasons or new issues raised in the submissions that justify the design being reconsidered now. (2)

This statement suggests predetermination and that a very high burden of proof, without any statutory justification, is sometimes applied to submissions from the public on concession applications.

Environmental impact assessment literature emphasises clarity and plain language in reports. The current structure of the 'report to approve' does not achieve that. Ultimately the statutory basis of the report to approve is not s 49, but s 17S(4), a report from the Director General of Conservation supporting a decision made by the Minister with regard to the tests outlined in Part IIIB of the CA.

This is clear from a reading of s 17Q, which states that the Minister may grant a concession in respect of any activity "subject to this part of this Act". Consequently the report to approve, as a report documenting a statutory process, should specifically follow a template of all the relevant statutory tests.

Several statutory tests allow a 'technical knockout'

Each test is phrased as a question, with a yes or no answer. A point to note is the complexity of the process. There are sixteen distinct steps for an application involving the lease of a structure. There are twelve steps for a more typical licence or permit, assuming it will be publicly notified.

There are nine statutory tests where the Minister shall decline the concession application if one condition fails to be satisfied. This allows the Minister the option of a technical knockout, of declining the application without having to weigh up the several prescribed matters in s 17U(1) (nature of activity, effects, mitigation, submissions, EIA reports and the s 17S(4) report). As a consequence, the decision making is not about considering or weighing several prescribed matters and then making the decision based on the application of only one of the prescribed matters. (3)

The technical knockout tests indicate that the default option of not approving an application is available to the Minister. However the effects tests appear to dominate over the technical knockout tests in the decision making. In the next paragraph we give some examples of poor consideration of the effects tests, before looking in detail at the technical knockout tests.

Tests for obtaining and assessing information on effects

Several statutory tests emphasise obtaining and reviewing information concerning the effects of the proposed concession. The applicant is required by s 17S(1) to provide information on the activity, its location, the effects and measures to avoid, remedy or mitigate adverse effects. "Effects" has the wide RMA definition as outlined in s 2 of the CA.

There are wide powers under s 17S(3) to obtain further information as is considered "necessary to enable a decision to be made" and to obtain an environmental impact assessment. These assessments may be externally reviewed, under s 17S(4)(a), at the applicants expense. The Minister may, under s 17S(4)(b), obtain from any source any existing relevant information. This information and submissions are the matters the Minister is required under s 17U to have regard to in considering each application.

In summary, the provisions would seem to require the Minister (or DOC) to have full information; to carefully assess the effects of the proposal; and to exercise discretion when granting (or declining) a concession.

In spite of the clear statutory direction described above, information from concession applicants is not always carefully assessed. As an example, in an application for a heli-hiking operation, the applicant checked "no" to all 16 points set out in a checklist of potential adverse effects in the standard concession application form. (4)

This implied that the heli-hiking operation would not be visible to others, have no effect on wildlife, have no possibility of introducing weeds and cause only "minimal" noise during take-off and landing. All of these statements were highly improbable. The applicant did not consider the effects the operation might have on other visitors and did not identify ways in which the potential adverse effects of the proposed activity might be avoided, remedied or mitigated.

The approval in principle report considered that the checklist responses provided satisfactory information on effects and mitigation. This conclusion is not adequate performance of s 17U(2)(a) or s 17S(3) and it fails to meet the PCE's good practice criteria of effectively checking the accuracy of an assessment of environmental effects ("AEE"). (5)

When questioned on this, the reply given to us by DOC was that the information in the application is provided for the decision-maker, not for submitters.

In another example, an applicant's AEE did not refer to the relevant conservation management strategies and plans and did not identify the effects of reduction in naturalness and on recreational use. Affected parties such as trampers and the local community were not identified. The AEE also failed to evaluate the significance of effects. (6)

When a submitter criticised this AEE, the report to approve stated that "it is perhaps a moot point as to whether it [the inadequacy of the AEE] is a relevant matter for a submission". (7)

This indicates a misunderstanding of environmental impact assessment. Public (and decision maker) scrutiny of the applicant's information is essential to counter the problem of possible bias when applicants provide their own information on potential effects. (8)

Evaluating the significance of effects in the conservation context

Having reviewed information on the effects of a concession activity the Minister may decline the concession application under s 17U(2)(b) where there are no adequate methods or no reasonable methods for mitigating the adverse effects of the activity. Deciding when an effect is significant (or adverse or minor or adequately mitigated) is a practical problem in environmental impact assessment. (9)

DOC appears to be struggling with the issue of evaluating the significance of the effects of tourism. The latest DOC study on effects does not mention either conservation purposes or conservation management strategies as sources of significance. (10) Environmental impact assessment literature provides the obvious answer: significance has been codified in legislation, policies and plans. (11)

We consider that this is explicitly stated in Part IIIB of the CA in the statutory tests concerned with conservation purposes and plans. These indicate that the decision-making should be based on the evaluation of the significance of effects in a conservation context.

Concession applications are required to be consistent with conservation purposes under s 17U(3) of the CA, and national park purposes under s 49(2)(b) of the National Parks Act 1980. Sections 17T(2) and s 17W(1) require applications to be consistent with Conservation Management Plans and Strategies. These are the "technical knockout" tests mentioned in the previous paragraph. In the next two paragraphs we discuss each of these requirements in turn.

Consistency with the purpose of conservation

Under s17U(3), the Minister cannot approve a concession if it is inconsistent with the purpose for which the land is held. For land held under the CA, the purpose is conservation as defined in s 2:

'Conservation' means the preserving and protection of natural and historic resources for the purpose of maintaining their intrinsic values, providing for recreational enjoyment by the public, and safeguarding the options for future generations.

Although this definition has subsidiary objectives (intrinsic values, recreational enjoyment and future options) and conjunctive functions (preserving and protecting) and subjects (natural and historic resources), the general direction prescribed by Parliament is clear. (12)

One of the listed functions of DOC, in s 6(e) of the CA, is to foster recreation and to allow tourism use to the extent it is not inconsistent with conservation. This confirms the statutory hierarchy of the CA: conservation is the primary purpose and recreation and tourism are objectives of lesser importance in that order.

Consequently this test should give a strong conservation context to consideration of effects. It has the technical knockout wording and should strongly protect natural and recreational values in conservation areas from inappropriate concessions.

The s 17U(3) test,however, appears to get watered down in a number of ways. The distinction between tourism and recreation is often blurred. For example, submitters argued that the Hump Ridge track system concession (in southern Fiordland) was inconsistent with the purpose of conservation because of concern about impacts on the fragile sub-alpine ecosystems and the reduction in remoteness.

DOC disagreed, arguing that the development allowed recreational use and enjoyment even though the same report acknowledged that the project was being developed largely for non-conservation purposes; to promote tourism and to attract visitors to the district. (13)

A decision to grant a concession motivated by non-conservation purposes appears contrary to the principle enunciated in Buller Electricity Ltd v Attorney-General [1995] 3 NZLR 344; that social and economic purposes are irrelevant considerations as the Minister must uphold only conservation purposes.

Sometimes the s 17U(3) test is simply not adequately considered. One approval in principle report considered an application to be "not inconsistent" with the purpose for which the land is held without providing any supporting arguments. (14)

When submissions challenged the omission, the report to approve concluded that consistency with conservation and national park purposes was a matter of judgement for the decision-maker and that their judgement was that the application was consistent with these purposes. (15)

This approach substitutes the objectivity associated with EIA principles with pure subjectivity.

Consistency with conservation management strategies and plans

The second technical knockout test is the requirement under s 17W and s 17T(2) to grant only concession applications that are consistent with conservation management strategies and plans.

One purpose of conservation management strategies under s 17D(1) is to establish objectives for the integrated management of the natural and physical resources managed by DOC. Conservation management plans, under s 17E(1), implement the conservation management strategies and establish detailed objectives. These objectives are often developed from a discussion of the special natural values protected in an area such as a national park. (16)

Objectives usually consist of two-clause statements, where the first clause enables or envisages an activity, and a second clause places some constraint on it. (17) For example an objective from the Fiordland National Park Management Plan is: (18)

To allow facilities and services ancillary to commercial recreation/ tourism only where use of park facilities is not practicable, and there is no significant conflict with other park values or recreation management objectives.

The Minister is required by s 17W and s 17T(2) to grant only concession applications that are consistent with conservation management strategies and plans. Evaluating consistency with a conservation management strategy or plan under s 17W requires two steps. First, is the activity 'provided for' by an enabling clause? If the answer is 'yes'; is the activity 'consistent with' all the objectives that place constraints on such activities? If the activity is not consistent, the Minister shall not grant the concession.

Secondly if the activity is not 'provided for', s 17W(2) applies, and the Minister may grant the concession after complying with s 17S, s 17T and s 17U. Under s 17T(2) the Minister must be satisfied that the application is consistent with the plan or strategy objectives even though the activity was not 'provided for'.

This means that a concession activity may be either provided for or not provided for in a plan or strategy, but either way it can be considered 'inconsistent' with the constraining clauses of plan objectives written to protect the special conservation values of that area. If this is so, the Minister shall not grant the concession.

How is consistency with conservation management plans and strategies being interpreted by DOC? It appears DOC staff review plans and strategies only for specific enabling clauses and for specific prohibitions on concession activities. This in fact confuses 'consistent with' and 'provided for'.

For example an 'approval in principle' report noted that the 1994 Mount Aspiring National Park management plan permits (or provides for) competitive events and concluded therefore that a running race application was not inconsistent with the plan. (19)

Considering alternatives

Section 17U(4)(a) requires the Minister to consider alternative locations for structures where the potential adverse effects would be significantly less. Buildings and structures within conservation areas will almost always have potential adverse effects such as impacts on the natural environment, on existing recreational use, and on landscapes.

In December 1999, the report to approve the Routeburn Walk Limited concession approved a proposed new shelter on the Routeburn Track without considering any other locations. It dismissed the option of alternative sites without identifying any. One reason given was that there were no alternatives as the Routeburn Track cannot be substituted for elsewhere. (20)

It is questionable how this statutory test could be adequately performed without identifying alternative locations. This approach appears to deprive s 17U(4) of any force or meaning, yet it appears to be common in reports to approve concessions.

Is the concession appropriate?

"Nothing shall require the Minister to grant any concession if he or she considers that it is inappropriate in the circumstances of the particular application having regard to the matters set out in section 17U of this Act".

This gives the Minister the discretion to decline a concession application where it is "inappropriate". This is a higher threshold than inconsistency with the purpose for which the land is held or inconsistency with a Conservation Management Strategy.

Therefore, this should be another strong test to protect conservation areas from inappropriate concessions. However, we have not seen this test specifically discussed in any reports on concessions. This omission reinforces the point previously made that the report to approve should follow the template of the statutory tests.

Conclusion

Part IIIB, s 17O to s 17ZJ of the CA provides for environmental impact assessment of concession applications. These provisions should enable the Minister to ensure that concessions are only approved where:

• the activity is consistent with the purpose of conservation (s 17U(3)),
• the activity is consistent with the conservation management strategy (s 17T(2) & s 17W),
• the adverse effects are adequately avoided, remedied or mitigated (s 17U(2)(b),
• the alternatives are not practicable (s 17U(4)(a)), and
• the granting of the concession is appropriate (s 17T(3)).

From the sample of concession applications we have examined, it appears that the performance of these statutory tests is not satisfactory. The concerns expressed to the PCE and noted in the opening paragraph are real.

Applicants in many cases are not providing sufficient information on effects and this information is not being adequately reviewed. DOC officials occasionally express attitudes that indicate predetermination of certain decisions and that is antithetical to the role of public involvement in the process.

Consistency with the purpose of conservation and with the conservation management strategy is not adequately considered. These requirements do not appear to guide the assessment of the significance of effects. Perhaps this is the most serious matter.

It appears that when there is insufficient objective information to support a conclusion on the significance of effects, the report to approve relies on the subjective decision of the individual writing the report. We consider this is antithetical to both the scheme of careful assessment laid out in the CA and to environmental impact assessment methodology.

The burden of proof for establishing that a concession application meets the statutory tests rests with the applicant and if this cannot be established objectively with sufficient reasonable arguments we consider that the application should be declined.

References

1. Parliamentary Commissioner for the Environment, Management of the Environmental Effects Associated with the Tourism Sector, November 1997, esp at pp 98-99, and see appendix A, page A75 for the comment on cumulative effects.

2. DOC (Otago Conservancy), Report to approve application for concession by Routeburn Walk Ltd, December 1999.

3. Fisher, D. E., The resource management legislation of 1991: A judicial analysis of its objectives, in Resource Management, Brooker and Friend Ltd, Wellington, Vol. 1A, Intro 1-30. p 15, 4th paragraph.

4. Department of Conservation (Otago Conservancy), Report to Approve Application for Concession by Richard Fraser, 31 March 2000, Dunedin.

5. Parliamentary Commissioner for the Environment, Assessment of Environmental Effects (AEE): Administration by Three Territorial Authorities, August 1995.

6. DOC (Otago Conservancy), First Determination Report to the Area Manager Te Anau and Wakatipu (Approval in Principle/Decline) Application for concession by Routeburn Walk Limited Routeburn Track - Fiordland and Mount Aspiring National Parks, 3 June 1999.

7. DOC (Otago Conservancy), Report to approve application for concession by Routeburn Walk Ltd, December 1999.

8. Grinlinton, D. P., (2000) "Integrated environmental assessment in New Zealand", (2000) 17 Environmental and Planning Law Journal 176, 186.

9. Williams D.A.R. (ed.), Environmental and Resource Management Law in New Zealand (2nd ed, 1997), p 526.

10. Cessford, G,R. and Dingwall, P.R., An approach to assessing the environmental impacts of tourism, 1999 (Conservation Advisory Science Notes No. 247, Department of Conservation, Wellington).

11. Morgan, R. K., A structured approach to reviewing AEEs in New Zealand, 1999 (Centre for Impact Assessment Research and Training publication no. 3. Department of Geography, University of Otago, Dunedin).

12. Fisher, D. E., The resource management legislation of 1991: A judicial analysis of its objectives, in Resource Management, Brooker and Friend Ltd, Wellington, Vol. 1A, Intro 1-30. p 5.

13. DOC (Southland Conservancy), Final report to the Conservator, Southland Application for a Concession Tuatapere Hump Ridge Track Trust. 25 September 1998, pp 9 and 3.

14. DOC (Wakatipu Area Office), First Determination Report to the Area Manager Wakatipu and Te Anau For Approval in Principle/Decline Application for concession by Total Outdoor Momentum, 17 January 2001.

15. DOC (Otago Conservancy), Report to the Conservators Otago and Southland Application for concession by Jason Peter Caulton Ltd, 12 April 2001.

16. DOC (Otago Conservancy), The Mount Aspiring National Park Management Plan, 1994, p 5.

17. See, for example, DOC(Otago Conservancy),Report to approve application for concession by Routeburn Walk Ltd, December 1999.

18. DOC, (Southland Conservancy), The Fiordland National Park Management Plan, 1991.

19. DOC (Wakatipu Area Office),First Determination Report to the Area Manager Wakatipu and Te Anau For Approval in Principle/Decline Application for concession by Total Outdoor Momentum, 17 January 2001.

20. DOC (Otago Conservancy),Report to approve application for concession by Routeburn Walk Ltd, December 1999, p 17.

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