In order to carry out any commercial activity on conservation land, a concession from the Department of Conservation is required. Recreationalists are voicing mounting concern about the increasing impacts of commercialism and tourism on the conservation estate. Our analysis of recreation and tourism concession applications in the lower South Island shows that these concerns are well founded. We believe that many concessions are being approved with little regard for their adverse effects on natural and recreational values.
Legislation relating to tourism and concessions on conservation land is included in section 6(e) of the Conservation Act 1987 and subsequent amendments made in 1996, Part IIIB, s 17O to s 17ZJ. Concession activity must comply with this legislation and be consistent with the provisions of conservation plans. The department's 1996 Visitor Strategy provides additional guidelines for managing concessions.
We believe that this legislation and policy provides a clear framework for managing concessions on conservation land. Concessions must be consistent with conservation purposes, and have no adverse environmental effects. We believe that the current legislation is a strength of the concession approval process. We present flow charts describing the statutory tests each concession application must pass.
In general, we support the current legislation. However, we are deeply concerned with the way in which the statutory process is being implemented by some conservancies. We use examples to illustrate our concerns and make recommendations for improvement.
We conclude that the reason for this poor implementation is probably due to a fundamental incompatibility between conservation and revenue-generation goals. We also note that the outcome of the concession approval process depends greatly on the strength of conservation planning.
According to section 6(e) of the Conservation Act 1987, a function of the Department of Conservation is to foster the use of natural and historic resources for recreation, and allow their use for tourism, but only to the extent that this use is not inconsistent with conservation. These statutory priorities are also emphasised by the policies of the Visitor Strategy (DOC 1996).
The department's process to permit tourism and commercial operators (concessionaires) within conservation areas is contained in Part IIIB, Sections 17O to 17ZJ of the Conservation Act 1987. Part III was inserted by the Conservation Amendment Act 1996 to create a single set of provisions for concessions under the Conservation Act, the National Parks Act, the Reserves Act and the Wildlife Act ( Report of the Planning and Development Committee (1995).; DOC 1996)
This amendment reflected the environmental impact assessment focus of the Resource Management Act in that applicants for concessions must identify the potential effects of their activities and suggest ways that adverse effects on the environment can be avoided or mitigated (DOC 1996). Under Section 2 of the Conservation Act 1987,"effects" has the very wide Resource Management Act 1991 definition.
However there are significant differences between the two acts. The purpose of the Resource Management Act 1991 is sustainable management of natural and physical resources (S.5). The underlying assumption is that any use of resources should proceed if there are no adverse environmental effects (MfE 1999). Decision makers must balance many equally weighted matters (subject to sustainable management) in approving resource consents under s.104 of the RMA.
The purpose of the Conservation Act 1987 is conservation of New Zealand's natural and historic heritage (DOC 1998a). The Conservation Act 1987 did not replace the existing conservation legislation: it became the apex of the legislative hierachy. Decision making matters under S.17 are not to be balanced equally. There are 9 statutory tests where the Minister shall decline the concession application if a condition is not satisfied (Figure 2).
These "one strike you're out" tests give a greater weighting to conservation purposes and are more specific than the RMA's balancing approach. However, in addition to requiring a concession from DOC, concessionaires may still be obliged to obtain resource consents (S.17P(1) of the Conservation Act 1987).
The concession approval process is described in the flowchart in Figure 1. Each test is phrased as a question, usually with a yes or no answer. Concession applications are summarised by DOC into an 'approval in principle' report. Lease and licence applications must be notified for public submissions (S.17T4). Permit and easement applications do not have to be publicly notified, but they may be notified if it is considered appropriate in regard to the effects (S.17T5). In making the final decision, the Minister shall have regard to public submissions and several statutory tests. The statutory tests are described in detail in Figure 2.
The process has the purpose of ensuring that the Department of Conservation will not grant applications that are either inconsistent with conservation purposes or have undesirable effects. This is a major strength of the legislation.
However our analysis of the department's decisions has revealed seven major problems. We provide examples to illustrate these problems.
It is very difficult, for both the Department of Conservation and the public, to assess the likely impact of the proposed activity, when there isn't enough information. Concerns about lack of information in concession applications form a consistent theme in FMC submissions from the past to the present. However it appears common that important aspects of the concession activity are revealed only at submission hearings.
For instance, it emerged at a hearing on an application to construct and maintain a track and hut on the Hump Ridge in Southland, that the applicant wished to build a communication aerial on the ridge. This aspect of the concession was not contained within the application documents (DOC 1998b).
Likewise, at a hearing on a concession application for commercial jet-boating on the Te Anau lakes, the applicant advised that he was not seeking approval for scheduled trips or thrill-seeking activity, but rather for charter work only. This was news to both FMC and the Department of Conservation, and resulted in FMC having much less concern over the activity, while the department had to substantially modify the conditions it had originally imposed (DOC 1999a).
However the applicant subsequently advised department staff that he intended to utilise department facilities to allow use of the jet-boat for water-skiing activities, which the department agreed to after imposing further conditions. One must sympathise with the department's staff who have to deal with applicants changing their minds like this, but FMC's concern about commercial thrill-seeking activity was effectively subverted by this back-door process.
The important lesson for submitters is that at minimum they MUST turn up to concession hearings to ensure that all relevant information is received.
The standard concession application form includes several prompts for information on the nature of the proposed activity, why the area applied for was chosen, whether potential adverse effects would be less in alternative locations, and the duration of the activity, but little space is allocated for the applicant's response. Greater responsibility is placed on the applicant to identify potential adverse effects, with a 16 point checklist provided as a starting point for the applicant's description of effects and any measures taken to avoid, remedy or mitigate them. Section 17S(1) subsections (a) to (f) require this information to be provided in concession applications.
No provisions are made, however, for the department to supply any information on existing use of the area applied for, either in terms of other concessions that might be operating, or public use. This lack of context makes it difficult for submitters to assess the cumulative impacts of several concessions in an area, or weigh up the significance of adverse effects in relation to existing use. It might also be helpful if the department provided summaries of relevant provisions of the conservation plans that the concession must comply with. This would benefit both the applicant and the public.
The belief of one conservator that;
"The information in the application is provided for the decision-maker, not for submitters"
(letter to KML, 16-8-00) highlights our concerns about the provision of information on concession effects. It indicates that some conservancies place little value on effective public consultation over concession applications, contrary to the intentions of legislators (Report of the Planning and Development Committee 1995).
Some applicants take their assessments of environmental effects seriously, and we have seen some outstanding examples (DOC 1999c). However others show little understanding of what is required. As mentioned above, Section 17S(1)(a) to (f) requires the applicant to assess the potential adverse effects of the proposed activity, and state what measures will be taken to avoid, remedy or mitigate these effects. A typical assessment for a concession on conservation land should refer to relevant conservation plans (e.g. conservation management strategies, national park management plans), identify adverse effects on natural values and recreational use, evaluate the significance of these effects, and consider how they might be avoided, remedied or mitigated. Affected parties (e.g. trampers, iwi) should be identified. Information on environmental effects should be gathered early in the planning stage to enable environmental issues to be considered before the proposal becomes finalised (Smith 1996).
As an example of a poor assessment, Routeburn Walks Limited's application for a concession to build a lunch shelter on the Routeburn track (RWL 1998) did not address any of the 'typical' requirements described above. In addition, the effects report was submitted more than a year after the original application, giving little chance for environmental issues to be considered before plans were finalised.
An even worse assessment of environmental effects was provided by an applicant who checked "no" to all 16 of the points in the standard concession application form's checklist of potential adverse effects. He considered that the proposed helihiking operation in the Makarora area would not be visible to others, would have no effect on wildlife, would have no possibility of introducing weeds and would cause "minimal" noise only on take-off and landing (DOC 2000a, Appendix 1).
All of these statements were clearly untrue. The applicant failed to consider any effects the helihiking operation might have on other visitors, and failed to identify any ways in which the adverse effects of the proposed activity might be avoided, remedied or mitigated.
Poor information and poor assessments of environmental effects would not be a problem if conservancies refused to process those concession applications. Instead poor applications are frequently accepted uncritically by the department.
With regard to the Makarora helihiking application, the first determination report (DOC 2000a, Appendix 2) stated that:
The applicant has provided a description of the potential effects of the activity, and actions that will avoid, remedy, or mitigate any adverse effects. There is sufficient information in the assessment to allow the department to proceed with processing the application.
This was palpably untrue. We cannot conceive how the department could have held such a view if it were impartially considering the application. The alternative is that approval of this concession application was predetermined, and the public process was largely irrelevant.
Conservation plans contain objectives consisting of two-clause statements, where the first clause enables or envisages a development and a second clause places some constraint on it (DOC 1999d). For example an objective from the Fiordland National Park Management Plan (DOC 1991) is:
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 Department typically interprets such statements by determining the 'appropriate balance' between clauses (DOC 1999d). This approach was used when Otago Conservancy considered a concession application by Routeburn Walks Limited to build an exclusive lunch shelter on Harris Saddle. The department balanced the provisions allowing the activity against the degree to which the constraining clauses were compromised.
Authoritative support for this 'appropriate balance' procedure was claimed from the introduction to the National Parks General Policy (1983) and from the practice of zoning in national parks. Following this reasoning, Otago Conservancy regarded the proposed Harris Saddle shelter addition as an acceptable minor impact on the natural setting, necessary to achieve the provided-for activity of facility development.
The 'appropriate balance' interpretation is incorrect. The logical flaw in the 'appropriate balance' interpretation is that it allows ad-hoc decision-making. Anything may be consistent with a plan if the 'provided for' clause is interpreted broadly and the 'consistent with' clause is interpreted narrowly. Under section 17W(1) of the Conservation Act 1987 activities that are provided for but are inconsistent with conservation management strategies and plans shall not be approved (our emphasis; Figure 2, steps 2, 3 and 5). This means that a plan can 'provide' for an activity that can never-the-less be considered 'inconsistent' by reference to the same plan. For example the plan objective quoted above has two clauses:
(1) To allow facilities and services ancillary to commercial recreation/ tourism... (2)...only where use of park facilities is not practicable, and there is no significant conflict with other park values or recreation management objectives
The first clause makes provision for the activity. The second clause limits that provision by stating where the activity will be inconsistent. Concessionaires' facilities are provided for in the plan but if they significantly conflict with other park values or recreation management objectives, the facilities will be inconsistent with the conservation management strategy or plan. If so, the Minister's decision making is not discretionary, the Minister shall not grant the concession. The correct relationship is that the constraining 'consistent with' requirements are to be given greater weight than the 'providing for' clauses.
Section 17U(4)(a) of the Conservation Act specifically requires the Minister to consider alternative locations for structures where the potential adverse effects would be significantly less. This test is also expressed in plain language on the department's web page (DOC 2000b):
If your proposal includes buildings or structures, the department will also consider whether there is a more suitable place where your proposal would cause less damage
.Buildings and structures within conservation areas will almost always have "potential adverse effects" such as impacts on the natural environment, impacts on existing recreational use, and impacts on landscape vistas. Routeburn Walk Limited's assessment of environmental effects stated that their proposed shelter on Harris Saddle would have no significant adverse effects and that consequently there would be no requirement to assess alternative locations or methods (RWL 1998).
Even if this was true, it is not the appropriate test. The application involved a structure, therefore a statutory requirement to consider alternatives is triggered (S.17U(4)(a)(2)). An alternative location may have dispersed shelter users and stopped Harris Saddle looking like a small village of intrusive structures with clashing architecture.
A major concession application that did not consider alternatives was the proposal by the Tuatapere Hump Track Trust to construct a great walk track and hut system on conservation land in south-eastern Fiordland (DOC 1998b). Part of this development is to take place in an outstanding and unmodified landscape of tussock, tarns and rock outcrops on the south end of the Hump Ridge (see photo on p. 123 of FMC's (1983) Wilderness Recreation in New Zealand).
The area is remarkable in having high values for remoteness, wilderness and natural quiet despite being easily accessible from an existing track that crossed further north along the ridge. The adverse effects of the proposal on natural values and existing recreational use could hardly be considered insignificant. The development is almost certain to result in the invasion of weeds, which will probably be an irreversible effect. The existing remote qualities and natural quiet of the area will be destroyed and users seeking remoteness will be displaced as their recreational opportunity is eliminated from the area. A 'weekend wilderness' will be lost.
Section 17U(4) of the Conservation Act explicitly states that applications involving structures shall be declined (our emphasis) if they could reasonably be undertaken in alternative locations where the potential adverse effects would be significantly less. In this context we suggest that the possibility of siting the Hump Track development on the Longwood Range should have been investigated. This nearby range retains a predominantly natural character, but has already been modified by logging, roading and weed invasion, and the potential adverse effects of a new track and hut system would certainly be significantly less. The Hump Track proposal also included upgrading the existing South Coast track and building a new hut at Port Craig. We have no major objections to this part of the development, because it takes place in an area which has already been considerably modified by logging and has a high level of existing recreational use.
The Parliamentary select committee that reported on the Conservation Amendment Bill (No. 2) considered public consultation to be an essential part of the concession process (Report of the Planning and Development Committee 1995). Good consultation involves communicating a proposal that is not already decided; listening to others; considering responses; and then deciding what will be done (MfE 1996). Consultation must happen for a reasonable period of time in a spirit of open-mindedness so that all reasonable planning options are carefully considered (MfE 1996). Public involvement through consultation is critical to a successful environmental impact assessment process. Consultation addresses environmental issues of public concern, keeps the process open and democratic, provides better advice to decision-makers and gives the process credibility (Morgan 1998). Unfortunately we find that some Conservancies place little value on effective consultation. A good example of this is the consultation surrounding the Makarora helihiking concession application.
This application received four submissions from the public, but one of these (from FMC) was received one working day late. The three submissions from recreational interests were unanimous in seeing the application as a source of conflict with existing recreational values. The department disallowed the FMC submission on the grounds of lateness. It is notable that an amended submission from one of the submitters was also received one working day late, but was considered valid (DOC 2000a), unlike the FMC submission. We question the wisdom of disregarding a substantial submission from a national organisation representing the interests of 12,000 outdoor recreationalists. We speculate that the reason why the department disregarded the FMC submission was because it was critical of the department's assessment of the application.
A strong message came from submitters that the upper Makarora Valley, while zoned 'moderate impact', was valued for the quiet experience that could be gained there, and that the proposed helihiking operation would have an adverse effect on this experience. However the Otago Conservancy reports were dismissive of these views, consistently stating, without supporting evidence, that the effect of the activity would be minor (DOC 2000a). We conclude that the decision was predetermined.
Consultation involving structures is usually 'closed', with only the one preferred option being presented (e.g. the Harris Saddle shelter). It also seems common for the Department not to send submitters the final Report to Approve. This should be standard practice. Failure to supply submitters with the decision document makes it harder for submitters to form a view of the validity of the process, and of how the department regarded their concerns.
The Visitor Strategy (DOC 1996) was developed after wide consultation with interest groups. It has the status of guiding and informing all the Department's planning and management relating to visitor services. The Visitor Strategy contains a number of principles for managing concessions, and one of five major goals concerns tourism concessions on protected lands:
"In managing a range of recreational opportunities, to allow the private sector to provide visitor facilities and services where they do not compromise the intrinsic natural and historic values of areas managed by the Department and do not compromise the experiences or opportunities of other visitors."
It is an indictment on the Department that we have never seen any reference to the Visitor Strategy in any evaluation of a concession application. We suggest that the goal quoted above would be an embarrassment to many approved concession applications.
The Hump Ridge track is a classic case of tourism development overriding conservation purpose. The Conservation Act 1987 is designed to protect outstanding conservation lands from such development, yet it failed in this case. Why? We believe that pressure from politicians seeking positive media coverage may be behind the decision to grant this concession. The Minister of Conservation at the time, Nick Smith, was an enthusiastic supporter of the Hump Track development. Ministerial press releases promoted the proposal as a regional success story and large sums of money were granted to the project (ODT 2000). Concerns from submitters about adverse impacts of the proposal were brushed aside. None of the press releases mention impacts on conservation values, the protection of which is the primary objective of the Conservation Act 1987.
We suggest the following specific recommendations.
A list of recommendations may be of no use without a more fundamental analysis of why the department is not implementing the concessions regime properly. The Restoring the Dawn Chorus strategy document (DOC 1998a) reveals ambivalence towards the legislative goals for concession activities, consistence with conservation purposes and absence of adverse effects. There appears to be a conflict between conservation purposes and objectives of revenue generation and maintaining relationships with the tourism sector. For example, three detailed objectives for concessions are to promote efficient handling, to minimise administrative cost and to maximise revenue (DOC 1998a). The department reports a cost performance measure for processing concession applications (DOC 1999e), and is considering making concession approval simpler and less bureaucratic for businesses (DOC 1999f).
We suggest that the current perception of a time and cost problem is caused by poor implementation based on poor information. Good environmental information may take some time and money in the short term but will contribute to a better, less costly and more timely decision in the long run. A focus on reducing the application processing time and cost to applicants will reduce the quality of information used and therefore the quality of approval decisions and conservation outcomes. Consequently we strongly oppose any measures to make concessions easier to obtain.
The individual way in which concession applications are processed makes it very difficult to combat the cumulative effects of increasing numbers of concessions. Once one concession is approved, it paves the way for others to follow, on the grounds that, for instance, remoteness has already been compromised (DOC 2000a). Alternatively, it is argued that a new concession will have little impact because there are no similar concessions operating at the site, or because an area is not used much for recreation (DOC 2000a). Step by step, tourism wedges its way into the conservation estate, and as the cumulative effects increase, so conservation values are degraded.
In order to avoid cumulative effects, conservation management plans need to be written to define clear carrying capacities. Successful outcomes from the concession approval process are dependent on strong planning documents. There is little purpose in writing conservation management strategies and national park management plans if their policies are not prescriptive and unambiguous.
A priceless feature of New Zealand's conservation estate is its largely unspoiled and undeveloped nature. Its primary purpose is not to be exploited for tourism but to be conserved. We would like to remind our readers of the meaning of conservation, as defined by the Conservation Act 1987:
"Conservation" means the preservation 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 of future generations.
Poor interpretation, expedient implementation, inappropriate performance measures and resourcing pressures on the department have undermined the conservation purpose of the concessions legislation. The department must follow its legislation and put the maintenance of conservation and recreation values ahead of facilitating tourism developments.
Sandra Lee voiced concern as an MP, during the second reading of the Conservation Amendment Bill (No. 2), about political pressure on regional conservancies to grant more and more concessions as a way of augmenting inadequate budgets (Hansard 1996). Her concerns appear to be justified, and we hope that as the present Minister of Conservation, she will treat the issues we have raised in this paper seriously.
DOC. (1991) The Fiordland National Park Management Plan. Department of Conservation, Southland Conservancy, Invercargill.
DOC. (1996) Visitor Strategy. Department of Conservation, Wellington.
DOC. (1998a) Restoring the Dawn Chorus. Department of Conservation strategic business plan. Department of Conservation, Wellington.
DOC. (1998b) Final report to the conservator, Southland. Application for a concession. Tuatapere Hump Track Trust. COC 059. Department of Conservation, Southland Conservancy.
DOC. (1999a) Concession application: Peter Donald Chartres. COC 134. Department of Conservation, Southland Conservancy.
DOC. (1999c) Guiding Concession Application. Country Walkers Inc. COC 27/99 Westland Conservancy, Hokitika
DOC. (1999d) Report to approve application for concession by Routeburn Walk Ltd. Department of Conservation, Otago Conservancy, Dunedin.
DOC. (1999e) Department of Conservation Annual Report for the year ended 30 June 1999. Department of Conservation, Wellington.
DOC. (1999f) Conservation. A briefing for the new Minister of Conservation. Department of Conservation, Wellington.
DOC. (2000a) Report to approve. Application for a concession by Richard Fraser. Department of Conservation, Otago Conservancy.
DOC. (2000b) An Introduction to Concessions and Permits. http://www.doc.govt.nz/about/conces.htm 25/5/00
Hansard (1996) Conservation Amendment Bill (No. 2). pp 11242-11243. New Zealand House of Representatives, Wellington.
MfE. (1996) Assessment of environmental effects. The legal context of the assessment of environmental effects. Working paper 4. Ministry for the Environment, Wellington.
MfE. (1999) Your guide to the Resource Management Act. An essential reference for people affected by or interested in the Act. Ministry for the Environment, Wellington.
Morgan, R. K. (1998) Environmental impact assessment: a methodological perspective. Kluwer Academic, Dordrecht.
Morgan, R. K. (1999)A structured approach to reviewing AEEs in New Zealand. Centre for Impact Assessment Research and Training publication no. 3. Department of Geography, University of Otago, Dunedin.
ODT (2000) Money for walking track received. The Otago Daily Times, 10 June 2000.
Report of the Planning and Development Committee (1995). Conservation Amendment Bill (No. 2). The Planning and Development Committee, New Zealand House of Representatives, Wellington.
RWL (1998) Concession application - structures and facilities. Routeburn Walk Limited application for concession (DOC form 4) dated 10/2/98. (includes 1999 Fourth Schedule Assessment of effects on environment.)
Smith, G. (1996) The role of assessment of environmental effects under the Resource Management Act 1991. Environmental and Planning Law Journal. 13(2): 207-221.