This page created 8 February 2001
There is growing concern, bordering on alarm, within the recreation community that DOC has become a tourism promoter, at the expense of public recreation.
Under-funding since the department's inception provides the genesis for a range of official policies and attitudes that are unfriendly to recreation. With an inadequate budget and 'conservation' being seen as DOC's primary function, provision for recreation, either through planning or facilities maintenance and provision, is increasingly portrayed by officials as of secondary importance.
Flow-on consequences from budget constraint are cost recovery and revenue generation policies. This coincides with rapidly growing tourism pressure, with this sector now seen as the department's central means of providing recreational opportunities, and income. Promotion of front country 'Great Walks' (often previously lightly used tracks that had limited public profile), and development of high standard facilities with attendant high user charges, are the consequence.
Back country huts and tracks, the domain of the traditional tramper, are being removed, not because of high maintenance costs (in many cases minimal maintenance is being done), but because there are limited opportunities for revenue generation compared to the booming commercial tourism sector.
Officials now claim (and are currently trying to convince Cabinet) that, in recent years, there has been a revolutionary change in visitor profile and expectations to the extent that the traditional back country visitor has disappeared. However this is an obvious fiction to back country users, supported by research. For instance the University of Otago has revealed that "back country" visits have increased nearly three-fold in recent years as visitors seek to avoid overcrowding in popular "front country" areas.
[About half the 1.7 million tourists who visited New Zealand each year visited the conservation "front country", defined as conservation estate areas within a day's walk into the area. The research showed 7% of visitors, about 120,000 people, went to "back country" conservation areas requiring more than a day's walk to reach. Kearsley 2001].
Government's election policies appear to be having no influence on DOC's performance, despite Labour making these commitments in 1999 --
The perversion of DOC's public recreation obligations is demonstrated by a current determination of user charges for huts and camping areas by no less than the Manager of 'National Revenue' in DOC's 'Business Management Division'. DOC clearly no longer sees itself as a public service, but as a revenue generator for itself and Government. Currently the department is seeking Cabinet approval for a strategy allowing removal or closure of back country huts and structures without any formal public consultation process.
The major 'business' growth area for DOC is the granting of concessions for trades or businesses, primarily tourism businesses. Only a small proportion is publicly notified with opportunity for submission and objection. Conservation Boards complain that DOC keeps them in the dark, and that there is inadequate or no monitoring of the impacts of concessions or compliance with conditions.
It is basically a free-for-all. The result is rapid, accumulative displacement of many New Zealanders from places they have traditionally enjoyed. The displacement can be physical (e.g., crowded out of huts), or from noise of aircraft. It seems the tourism-thrills sector cannot see beyond marketing its 'products' without an 'heli' element. There is now heli-skiing, heli-biking, heli-hiking, heli-hunting, heli-bungee, heli-jet-boating, heli-rafting, heli-fishing, heli-everything -- just about everywhere. It is significant that such activities are either heavily constrained or banned in the countries of origin of many visitors to New Zealand.
As one PANZ Supporter has observed, "tourism is indisputably our "golden egg", with huge potential for high quality, peak experience ventures, but tourism projects are getting out of hand. New Zealand is rapidly developing into "Tiki Tourist Land" -- one great "Theme Park" full of high thrill, quick trip, soft-option "adventures"... intrinsic values of our wilderness areas must take precedence over pecuniary or commercial interests..."you don't know what you've got 'till its gone..."
There are now very few readily accessible places for the foot-based recreationist away from roads where there can be an assurance of natural quiet in otherwise natural environments. Aside from the major detriment to aesthetic appreciation, helicopter access can result in direct competition for limited resources such as back country trout fisheries -- leading to their demise as recreational resources.
It seems that the outcome of most departmental decisions on concession applications depends on the personal inclinations of the officials making the decisions, with, it appears, only a cursory regard to the legislation that they are supposed be implementing. There is a widespread official view that --
The very essence of outdoor recreation -- spiritual and mental refreshment from physical exercise in natural environments -- seems lost in the official haste to accommodate the tourism sector and to generate revenue.
Only one decision has come to PANZ's attention that declined a concession application outright because of perceived conflict with recreational use.
In November 2000 DOC decided against granting a commercial heli-hunting application in the Kaimai Mamakau Forest Park, because, in part, of "the inability of the applicant to mitigate the effects on the general recreational use of the park...or on aesthetic values, through noise and perceived intrusion". The department noted that it is required to "encourage" recreation that is not inconsistent with the primary objective of the protection of the natural resources of the land that it administers. The park is used for a wide variety of recreational activities, including recreational hunting.
Just what are DOC's statutory duties in regard to recreation and tourism?
The Conservation Act 1987 provides for the establishment of DOC, sets out its functions and the objectives for managing a large number of conservation areas. The latter were formerly State Forests, and areas of Crown land allocated to DOC in the 1980's such as marginal strips. There are also national parks and a large number of reserves, which are supposed to be administered according to objectives set out in their own legislation. All legislation administered by DOC is scheduled at the back of the Conservation Act.
Common procedures for granting concessions over lands administered by DOC were established by amendment to the Conservation Act in 1996. Although the Government at the time endeavoured to fudge its intentions, in particular in regard to marginal strips, the reality was -
"The intent of the reforms is to remove inconsistencies (in legislation that) reduce the ability of the department (DOC) to respond efficiently to (concession) applicants and generate revenue for the Crown".
Conservation Minister Denis Marshall, in 1993 Cabinet Minute on Conservation Amendment Bill.
The Conservation Act provides a limited number of definitions of the terms it uses. Underlined words have definition in the Act.
Italicised words are not defined in the Conservation Act. PANZ quotes from The Oxford Encyclopedic English Dictionary, 1991 [the Courts accept the use of mainstream dictionary definitions in the absence of applicable legislative definition].
2. 'Conservation' means the preservation and protection of natural and historic resources for the purposes of maintaining their intrinsic values, providing for their appreciation and recreational enjoyment by the public, and safeguarding the options of future generations.
'Natural resources' means--
(a) Plants and animals of all kinds; and
(b) The air, water, and soil in or on which any plant or animal lives or may live; and
(c) Landscape and landform; and
(d) Geological features; and
(e) Systems of interacting living organisms, and their environment --and includes any interest in a natural resource: (s 2).
Intrinsic
Adj. Inherent, essential; belonging naturally (intrinsic value)Recreation
n. The process or means of refreshing or entertaining oneself; a pleasurable activity
Section 2 provides the central ethos for DOC. Clearly, 'conservation' is not an 'either preservation or recreation' approach. It embodies BOTH objectives.
Characteristics of natural places such as natural quiet, or natural sounds of wind on tussock or ridge, or of flowing water, are clearly intrinsic to such places. A dinning assault on the senses from, for instance, helicopter intrusion, no more naturally belongs to wild places than it would in a concert hall.
'Providing for ... appreciation and recreational enjoyment by the public', raises the questions --
Section 6 answers the first question by making a distinction -- recreation OR tourism.
'Fostering' entails an active nurturing and promotion of recreation, greater than mere 'encouragement', whereas 'allowing' tourism is permissive, a discretion at the pleasure of the Minister. This view is supported by the scheme of the Act which deems such activities to be 'concessions', requiring express consent, and payment of fees. There is a statutory priority given to recreation over tourism. PANZ believes that allowing tourism at the expense of public recreation, either through displacement or loss of social or natural amenity (intrinsic) values, is ultra vires the Conservation Act.
[PANZ researcher Bruce Mason has filed objections in his name to the granting of helicopter concessions in the Remarkables near Queenstown. This may lead to the first Court determinations on such matters].
6. Functions of Department--
The functions of the Department are to administer this Act and
the enactments specified in the First Schedule to this Act, and,
subject to this Act and those enactments and to the directions
(if any) of the Minister,---
(a) To manage for conservation purposes, all land, and
all other natural and historic resources, for the
time being held under this Act, and all other land and natural
and historic resources whose owner agrees with the Minister that
they should be managed by the Department:
(e) To the extent that the use of any natural or historic
resource for recreation or tourism is not
inconsistent with its conservation, to foster the use of
natural and historic resources for recreation, and to allow
their use for tourism:
Foster
v. Promote the growth or development of
Encourage or harbour (a feeling)
Be favourable to
Cherish; have affectionate regard for (an idea, scheme etc)Recreation
n. The process or means of refreshing or entertaining oneself; a pleasurable activityAllow
v. Permit a practice, a person to do something, a thing to happenTourism
n. The organisation and operation of (esp. foreign) holidays, esp. as a commercial enterprise.
The question 'who are the public' is answered by section 17 ("entry to and use of conservation areas by the public shall be free of charge"), and by subsections 17O(3)(b) and 17O(4) (application of Part IIIB - concessions). These express provisions require concessions and payment of fees for commercial activities' entry and use, but is not required of others.
Clearly, the clients of concessionnares, tourists, are recreating, but the providers, the concessionnaires, are not -- they are conducting and organising commercial enterprises, rather than recreating. The organisers require concessions, not their clients, although the latter end up paying for the privilege.
17. Access to conservation areas---(1) Except as provided by or under this section, Part IIIB [concessions], or section 38 (1) [hunting] of this Act, the entry to and use of conservation areas by the public shall be free of charge.
(2) The Minister may impose a reasonable charge for the use of facilities (other than paths and tracks) that are provided by the Minister in or in respect of any conservation area.
(3) A concessionaire of any part of a conservation area may, to the extent that the relevant concession document so provides, impose a reasonable charge for the use of any facilities in or in respect of that part of the area that are provided by the Minister or the concessionaire.
(4) Any person who, in accordance
with any concession or other consent of the Minister or Director-General,---
(a) Has erected any structure or facility in any conservation
area; or
(b) Uses any part of any conservation area for camping sites or
for parking places for vehicles; or
(c) Carries on any activity in any conservation area,---
may, subject to the conservation management strategy or conservation management plan (if any) relating to the area and to the terms and conditions (if any) of the relevant concession document, impose a reasonable charge in respect of access to or use of any such structure, site, or place, or the carrying on or products of the activity concerned (s 17).
17O. Application---(1) This Part [IIIB - concessions] of this Act applies to every conservation area.
(2) Except as provided in subsection (3) or subsection (4) of this section, no activity shall be carried out in a conservation area unless authorised by a concession.
(3) A concession is not required
in respect of---
(a) Any mining activity authorised under the Crown Minerals Act
1991 (including the transitional provisions of that Act); or
(b) Any activity that is otherwise authorised by or under this
Act or any Act specified in the First Schedule to this Act; or
(c) Any action or event necessary for the purposes of saving or
protecting life or health, or preventing serious damage to property
or avoiding an actual or likely adverse effect on the environment;
or
(d) Any activity that is carried out by the Minister or Director-General
in the exercise of his or her functions, duties, or powers under
this Act or any other Act.
(4) An individual or organised group undertaking any recreational activity, whether for the benefit of the individual or members (individually or collectively) of the group, does not require a concession if the individual or group is undertaking the activity without any specific gain or reward for that activity, whether pecuniary or otherwise.
(5) A group of the kind to which subsection (4) of this section applies may impose on its members a reasonable charge in order to recover the reasonable expenses in organising the recreational activity.
(6) Subsection (3) (b) of this
section shall not apply to any sports fishing guide or game hunting
guide who conducts any activity in a conservation area.
Section 17Q establishes that it is discretionary to grant or not grant concessions. There is no onus on DOC to grant concessions, despite the department's current practices indicating the contrary.
17Q. Powers to grant concessions---(1) Subject to this Part of this Act [ Part IIIB], the Minister MAY grant a concession in the form of a lease, licence, permit, or easement in respect of any activity [PANZ EMPHASIS]
Section 17U creates an hierarchy for the Minister to firstly avoid adverse effects. If unavoidable, then to counteract such effects. Thirdly, if neither avoidance or remedy are available, then to moderate the effects. These are explicit tests of the Minister's powers.
17U. Matters to be considered by Minister---(1) In considering any application for a concession, the Minister SHALL HAVE REGARD TO the following matters:
(b) The effects of the activity, structure, or facility:
(c) Any measures that can reasonably and practicably be undertaken to avoid, remedy, or mitigate any adverse effects of the activity:
(2) The Minister may decline
any application if the Minister considers that---(a) The information
available is insufficient or inadequate to enable him or her to
assess the effects (including the effects of any proposed
methods to avoid, remedy, or mitigate the
adverse effects) of any activity, structure, or facility;
or
(b) There are no adequate methods or no reasonable methods for
remedying, avoiding, or mitigating the adverse
effects of the activity, structure, or facility.
(3) The Minister SHALL NOT GRANT an application for a concession if the proposed activity is contrary to the provisions of this Act or the purposes for which the land concerned is held.
(4) The Minister shall not grant
any application for a concession to build a structure or facility,
or to extend or add to an existing structure or facility, where
he or she is satisfied that the activity---
(a) Could reasonably be undertaken in another location that---
(i) Is outside the conservation area to which the application
relates; or
(ii) Is in another conservation area or in another part of the
conservation area to which the application relates, where the
potential adverse effects would be significantly less; or
(b) Could reasonably use an existing structure or facility or
the existing structure or facility without the addition.
'Effect' has the same meaning as it has in the Resource Management Act 1991: (Cons Act s 2)
Meaning of "effect"-- In this Act (RMA), unless the context otherwise requires, the term 'effect' includes---
(a) Any positive or adverse effect; and
(b) Any temporary or permanent effect; and
(c) Any past, present, or future effect; and
(d) Any cumulative effect which arises over time or in combination with other effects---regardless of the scale, intensity, duration, or frequency of the effect, and also includes-
(e) Any potential effect of high probability; and
(f) Any potential effect of low probability which has a high potential impact (s 3 RMA).Avoid
v. Keep away or refrain from (a thing, person, or action)Remedy
n. A means of counteracting or removing anything undesirableMitigate
v. Make milder or less intense or severe; moderate
Subsection 17U(3), that "the Minister SHALL NOT GRANT an application for a concession if the proposed activity is contrary to ... the purposes for which the land concerned is held", is perhaps the most significant test that the Minister and DOC may have to face, given the definition of 'conservation' and the statutory functions of the department.
See also:
PANZ news release: 'Whack, don't scrap DOC'
Government (non) implementation of election policies