Decision-making framework

The Resource Management Act 1991 (RMA) provides jurisdiction over activities within the coastal marine area (extending 12 nautical miles seawards). Beyond the coastal marine area, the Exclusive Economic Zone and Continental Shelf (Environmental Effects) Act 2011 (EEZ Act) provides rules and regulations over activities within New Zealand’s EEZ.

Resource Management Act 1991 (RMA)

The control of recreation and tourism activities in the coastal marine area falls to regional councils under the RMA. ²⁹⁴⁴

The NZCPS includes objectives and policies which regional coastal plans must ‘give effect to’. Of particular relevance to recreation is Objective 4 which seeks to maintain and enhance the public open space qualities and recreation opportunities of the coastal environment. Many of the policies in the NZCPS relate to protection the provision of open and free access to the coast (particularly Policy 18 and 19). Specific recognition is given to surf breaks in Policy 16 which requires the protection of listed surf breaks of national significance by (a) ensuring that activities in the coastal environment do not adversely affect the surf breaks and (b) avoiding adverse effects of other activities on access to, and use and enjoyment of, the surf breaks.

Regional coastal plans generally include few controls on recreation and tourism activities in the coastal marine area, where they do not involve occupation of space or non-temporary disturbance.

The Resource Management (Marine Pollution) Regulations 1998

These regulations set out rules relating to discharges from ships (including any boat or craft used in navigation with or without any means of propulsion) in the coastal marine area. Treated sewerage can be discharged into the coastal marine area provided it is the prescribed distance from a marine farm or mātaitai reserve. Untreated sewage may only be discharged from a ship if it is more than 500 metres from mean high water springs and in water depths of more than five metres, as well as the prescribed distance from a marine farm, marine reserve or mātaitai reserve. ²⁹⁴⁶

Discharge of plastics is prohibited, but other ship garbage (including food waste, paper, rags, glass, metal, bottles, and crockery) can be discharged if ground to a particle size of 25 mm or less and if the discharge occurs at least three nautical miles offshore. Discharge of oil or oily water is permitted from a ship only if the oil content does not exceed 15 parts per million.

Exclusive Economic Zone and Continental Shelf (Environmental Effects) Act 2012 (EEZ Act)

In general there are only a few recreational or tourism activities that occur in the EEZ because of its distance from the shoreline. Those that do take place there include cruise ships and offshore recreational boating. The NIWA risk assessment helped informed the development of the EEZ Act. This assessment concluded that there were no activities associated with offshore recreation and tourism that were considered to represent an extreme environmental risk and, as a consequence, should be prohibited. ²⁹⁴⁷  However, the assessment did make a number of recommendations as to the status of certain tourism activities in the EEZ marine environment.

The following activities were considered to be of high environmental risk and were recommended to be categorised as discretionary:

• Tourist vessel activity impacting marine mammals (regulated under the Maritime Transport Act 1994 and the Marine Mammals Protection Act 1978)
• The use of surface flood lights at night which may cause bird strikes (regulated under the Maritime Transport Act 1994 and the Wildlife Act 1953)

In addition, the following activities were considered to be of moderate environmental risk and were recommended to be categorised as discretionary:

• Surface activity and noise
• Subsurface activity

The following activities were considered to be of low environmental risk and were recommended to be categorised as permitted:

• Operations near the seafloor likely to result in collisions with benthic fauna
• Subsurface lights and noise generated by camera systems, remotely operated vehicles and submersibles

The Act prohibits certain activities in the EEZ including structures, submarine pipelines, submarine cables, removal of non-living natural material, disturbance of the seabed or subsoil, and deposition of anything on the seabed - unless the activity is permitted by regulations or authorised by a specific marine consent. ²⁹⁴⁸ The EEZ Act does not contain any explicitly permitted recreation/tourism activities and, as a consequence, any activities are considered discretionary and therefore require a specific marine consent.

Marine Mammals Protection Act 1978

The Marine Mammals Protection Act protects all species of marine mammals within New Zealand waters. It is an offence to “take” marine mammals, whether alive or dead, from their natural habitat or “any other place” without a permit from the Department of Conservation. The term “take” is interpreted to include any actions likely to harass, harm, injure, attract or to disturb a marine mammal.

Marine Mammals Protection Regulations 1992 (MMPR)

As a consequence of the growing interest in interacting with marine mammals in the wild in New Zealand, the Marine Mammals Protection Regulations 1992 (MMPR) were developed to regulate human contact with marine mammals by commercial operators, members of the public and others. Commercial marine mammal operations are prohibited, unless a permit is issued by the Director-General of Conservation. Applications for permits are publicly notified and members of the public are able to make submissions.

The Regulations state that the Director-General of Conservation may not grant a permit unless satisfied there is substantial compliance with a number of criteria which include: ²⁹⁴⁹

• The commercial operation should not have any significant adverse effect on the behavioural patterns of the marine mammals to which the application refers, having regard to, among other things, the number and effect of existing commercial operations.
• That it should be in the interests of the conservation, management, or protection of the marine mammals that a permit be issued.
• That the proposed operator, and such of the operator's staff who may come into contact with marine mammals, should have sufficient experience with marine mammals.
• That the proposed operator, and such of the operator's staff who may come into contact with marine mammals, should have sufficient knowledge of the local area and of sea and weather conditions.
• That the proposed operator, and such of the operator's staff who may come into contact with marine mammals, should not have convictions for offences involving the mistreatment of animals.
• That the commercial operation should have sufficient educational value to participants or to the public.

The Director-General has the final word over revoking or suspending any permits. In addition, the Director-General may place a moratorium on the issue of new permits, when he or she has reasonable grounds to believe that it is necessary for the protection, conservation or management of any marine mammals.

There are also a number of regulations that commercial operations and any people coming into contact with a marine mammal are required to comply with, which include abandoning the interaction if the marine mammal is showing signs of becoming disturbed or alarmed and not causing the separation of individuals of marine mammals from their group. It is also illegal to feed marine mammals.

The MMPR also places restrictions on the speed that vessels may go when in the vicinity of any marine mammal. Extra requirements apply to whales, including that no person in the water shall be less than 100 metres from a whale and no vessel shall approach within 50 metres of a whale, unless authorised by the Director-General. There are also additional requirements that apply to dolphins or seals, including that no vessel shall proceed through a pod of dolphins and there should be a limit of the number of vessels able to make contact with a group of dolphins or seals.

Maritime Transport Act 1994

The Maritime Transport Act is primarily focused on the safety of shipping. The Act does not have an explicit purpose, but it does state that the objectives for the Minister of Transport under the Act are: to undertake the Minister’s functions in a way that contributes to an integrated, safe, responsive, and sustainable transport system and to ensure that New Zealand’s obligations under the conventions are implemented. No licence is required to operate a private recreational vessel in New Zealand but private boat operators must still comply with maritime rules and bylaws.

The Maritime Transport Act and the Maritime Rules regulate discharges and dumping from ships. “Unless authorised by and done in accordance with a permit issued by the Director under section 262, waste or other matter may not be dumped from a ship, aircraft, or controlled offshore installation: (a) into the sea, or onto or into the seabed, within the exclusive economic zone of New Zealand; or (b) onto or into the continental shelf of New Zealand beyond the outer limits of that exclusive economic zone, or into the sea above that part of the continental shelf.” ²⁹⁵⁴

Marine Reserves Act 1978

The Marine Reserves Act, administered by the Department of Conservation, provides for the establishment of marine reserves. The Marine Reserves Act applies only to the territorial sea (12 nautical miles from the mean high water mark), and thus marine reserves cannot be established beyond this in the EEZ. The Department of Conservation is responsible for managing marine reserves. Marine reserves are to be preserved in their “natural” state, to the extent possible. Although the purpose of marine reserves under the Act is for “scientific study”, the establishment of highly protected areas provides considerable benefits for recreation and tourism as well as biodiversity.

There are currently over 30 marine reserves in New Zealand’s territorial sea. A list of current and proposed marine reserves, and information about them, can be found at the Department of Conservation’s website. ²⁹⁵⁵

Conservation Act 1987

Any marine recreation or tourism business or organisation wanting to use public conservation land and marine reserves for their activities needs to get permission from the Department of Conservation in the form of a concession. This is a legal requirement under Part 3B of the Conservation Act 1987.  Some of the relevant activities that require a concession include guided activities (such as fishing in areas outside of marine reserves, kayaking and canoeing), water transport services, commercial education and instruction and running a sports event.

Local and regional bylaws

Local and regional councils may enact bylaws to manage behaviour and activities in the public interest. Regional councils have the jurisdiction for managing the coastal marine area within their regional boundaries and may designate specific zones or areas, restrict certain activities or require specific permits to conduct activities. Regional councils thus have the ability to manage and control a range of marine recreation and tourism activities. They do this via mechanisms such as:

• Designating ski lanes
• Providing boat mooring areas
• Closing areas to boating
• Restricting boat speed
• Requiring safety equipment (such as lifejackets)
• Temporary closures of areas to allow for special events
• Restricting dogs and other animals in certain areas or at certain times
• Installing signs and navigation aids
• Installing and maintaining boat launching ramps, floating docks, wharves and other structures (such as swimming platforms)
• Replenishing sand on beaches and the construction of coastal pathways
• Controlling cars and motorbikes driving on sand dunes and beaches

Last updated at 2:11PM on February 25, 2015