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 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.
Policy 16: Surf breaks of national significance
Protect the surf breaks of national significance for surfing listed in Schedule 1, 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:
- 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.
This provision has been utilised to establish moratoria on sperm whale, dusky dolphin and New Zealand fur seal tourism at Kaikōura, New Zealand fur seal tourism in Abel Tasman, southern right whale tourism in the Auckland Islands and bottlenose dolphin tourism in the Bay of Islands. However, the Department of Conservation has been reluctant to act to implement moratoria without hard evidence that there is a problem, something which has been difficult for scientists to provide. 2951 As a result, it can take years for a moratorium to be put in place, after potential problems are identified. For example, a moratorium on new permits was first proposed in the Bay of Islands in 1997, but was not implemented until twelve years later in 2009. 2952
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.
18. Conditions governing commercial operations and behaviour of all persons around any marine mammal. Every commercial operation, and every person coming into contact with any class of marine mammal, shall comply with the following conditions:
a. persons shall use their best endeavours to operate vessels, vehicles, and aircraft so as not to disrupt the normal movement or behaviour of any marine mammal:
b. contact with any marine mammal shall be abandoned at any stage if it becomes or shows signs of becoming disturbed or alarmed:
c. no person shall cause any marine mammal to be separated from a group of marine mammals or cause any members of such a group to be scattered:
d. no rubbish or food shall be thrown near or around any marine mammal:
e. no sudden or repeated change in the speed or direction of any vessel or aircraft shall be made except in the case of an emergency:
f. where a vessel stops to enable the passengers to watch any marine mammal, the engines shall be either placed in neutral or be switched off within a minute of the vessel stopping:
g. no aircraft engaged in a commercial aircraft operation shall be flown below 150 metres (500 feet) above sea level, unless taking off or landing:
h. when operating at an altitude of less than 600 metres (2 000 feet) above sea level, no aircraft shall be closer than 150 metres (500 feet) horizontally from a point directly above any marine mammal or such lesser or greater distance as may be approved by the Director-General, by notice in the Gazette, from time to time based on the best available scientific evidence:
i. no person shall disturb or harass any marine mammal:
j. vehicles must remain above the mean high water spring tide mark and shall not approach within 50 metres of a marine mammal unless in an official carpark or on a public or private slipway or on a public road:
k. no person, vehicle, or vessel shall cut off the path of a marine mammal or prevent a marine mammal from leaving the vicinity of any personal vehicle, or vessel:
l. subject to paragraph (m), the master of any vessel less than 300 metres from any marine mammal shall use his or her best endeavours to move the vessel at a constant slow speed no faster than the slowest marine mammal in the vicinity, or at idle or “no wake” speed:
m. vessels departing from the vicinity of any marine mammal shall proceed slowly at idle or “no wake” speed until the vessel is at least 300 metres from the nearest marine mammal, except that, in the case of dolphins, vessels may exceed idle or “no wake” speed in order to outdistance the dolphins but must increase speed gradually, and shall not exceed 10 knots within 300 metres of any dolphin:
n. pilots of aircraft engaged in a commercial aircraft operation shall use their best endeavours to operate the aircraft in such a manner that, without compromising safety, the aircraft's shadow is not imposed directly on any marine mammal.
18. Special conditions applying to whales
In addition to complying with the provisions set out in regulation 18, every commercial operation and every person coming into contact with whales shall also comply with the following conditions:
a. no person in the water shall be less than 100 metres from a whale, unless authorised by the Director-General:
b. no vessel shall approach within 50 metres of a whale, unless authorised by the Director-General:
c. if a whale approaches a vessel, the master of the vessel shall, wherever practicable,—
i. manoeuvre the vessel so as to keep out of the path of the whale; and
ii. maintain a minimum distance of 50 metres from the whale:
d. no vessel or aircraft shall approach within 300 metres (1 000 feet) of any whale for the purpose of enabling passengers to watch the whale, if the number of vessels or aircraft, or both, already positioned to enable passengers to watch that whale is 3 or more:
e. where 2 or more vessels or aircraft approach an unaccompanied whale, the masters concerned shall co-ordinate their approach and manoeuvres, and the pilots concerned shall co-ordinate their approach and manoeuvres:
f. no person or vessel shall approach within 200 metres of any female baleen or sperm whale that is accompanied by a calf or calves:
g. a vessel shall approach a whale from a direction that is parallel to the whale and slightly to the rear of the whale:
h. no person shall make any loud or disturbing noise near whales:
i. where a sperm whale abruptly changes its orientation or starts to make short dives of between 1 and 5 minutes duration without showing its tail flukes, all persons, vessels, and aircraft shall forthwith abandon contact with the whale.
20. Special conditions applying to dolphins or seals
In addition to complying with the conditions set out in regulation 18, any commercial operation and any person coming into contact with dolphins or seals shall also comply with the following conditions:
a. no vessel shall proceed through a pod of dolphins:
b. persons may swim with dolphins and seals but not with juvenile dolphins or a pod of dolphins that includes juvenile dolphins:
c. commercial operators may use an airhorn to call swimmers back to the boat or to the shore:
d. except as provided in paragraph (c), no person shall make any loud or disturbing noise near dolphins or seals:
e. no vessel or aircraft shall approach within 300 metres (1 000 feet) of any pod of dolphins or herd of seals for the purpose of enabling passengers to watch the dolphins or seals, if the number of vessels or aircraft, or both, already positioned to enable passengers to watch that pod or herd is 3 or more:
f. where 2 or more vessels or aircraft approach an unaccompanied dolphin or seal, the masters concerned shall co-ordinate their approach and manoeuvres, and the pilots concerned shall co-ordinate their approach and manoeuvres:
g. a vessel shall approach a dolphin from a direction that is parallel to the dolphin and slightly to the rear of the dolphin.
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
RMA 1991, section 30(1)(d)(vii)
Resource Management (Marine Pollution) Regulations 1998, section 11(2)
EEZ Act 2012, section 20
Marine Mammals Protection Regulations 1992 Regulation 6
Mulcahy K and R Peart, 2012
Mulcahy K and R Peart, 2012
Maritime Transport Act 1994, Section 261
Last updated at 2:11PM on February 25, 2015