In this article Simon Johnson further examines the process of approval of concessions under the Conservation Act 1987. He focuses on the recent high profile film concessions, the Lord of the Rings and Vertical Limits. He describes further examples of unsatisfactory performance of the statutory tests applied by the Department of Conservation, and concludes that consideration of conservation purposes, consistence with management plans and public notification are incorrectly subsumed under consideration of effects and mitigation. Simon Johnson is a compliance monitoring officer with Environment Canterbury
Peter Jackson's film adaptation of JRR Tolkien's fantasy trilogy, "The Lord of the Rings" ("LOTR") was announced in 1999. (1) Media coverage appears to have reached saturation point since then.
Attention has focused on the film's depiction of New Zealand landscapes in conservation areas.(2) Similar comments were made about "Vertical Limit" ("VL"), a climbing thriller set in the Karakoram and filmed in conservation areas in New Zealand's southern Alps.(3)
Both films were concessions approved by Department of Conservation ("DOC") staff under powers delegated from the Minister of Conservation ("the Minister") pursuant to the concession approval process in Part IIIB, s 17O to s 17ZJ of the Conservation Act 1987 ("CA").(4)
This process has been described in a paper which concluded that several statutory tests are sometimes not adequately performed by DOC. (5)
This analysis of the film concessions confirms this view. In the film concessions, DOC has treated statutory tests concerning effects and mitigation as outweighing the tests concerning consistence with conservation purposes and conservation management strategies ("CMS"). This is not correct as the consistence tests have a technical knockout wording requiring the Minister to decline applications that are inconsistent.
A further concern is that the film concession applications were not publicly notified. In the following paragraphs I firstly describe the scope of the film concessions then discuss how the concession reports dealt with conservation purposes, conservation management plans and public notification.
The LOTR was filmed in several regions of New Zealand. Applications for filming in a number of sites were granted in five DOC conservancies. These conservancies, and some details of the filming are listed:
The Vertical Limit was filmed in and approved for two conservancies:
The film concessions provide a sample of seven separate concession reports covering a large range of activities at multiple sites over a wide range of conservation areas and management plans. As such, they should give a good indication of how well DOC is applying the concession approval process nation-wide.
The statutory tests requiring concessions to be consistent with conservation purposes are s 17U(3) of the CA and s 49(2)(b) of the National Parks Act 1980 ("NPA"). However these tests have not been adequately performed in the film concessions. DOC has treated these tests as having been resolved with the consideration of effects and mitigation.
The Otago VL report explicitly does this for its s 17U(3) test by repeating the conclusion that the effects are minimal and that filming is permitted by the Otago CMS (p7). The Southland LOTR report has 20 pages of discussion of effects and mitigation and considers the two tests with a one sentence conclusion that the proposed activity is not inconsistent with the purpose for which the land is held. (13)
This is not supported by any other arguments. The same situation applies for the Otago LOTR report (p 6), the Wellington LOTR report (p 8), and the Canterbury VL report (p 12). The Nelson/Marlborough LOTR report, a brief 5 pages, does not mention the s 17U(3) test or the s 49(2)(b) test at all. The Tongariro/Taupo LOTR report refers the reader to the s 17W management plan section of the report for the conclusion for the s 17U(3)and s 49(2)(b) tests as the park is managed subject to a management plan (p 20).
These interpretations are not supported by a plain reading of the legislation. The tests for consistence with conservation purposes are separate from the effects and mitigation tests, s 17U(1)(b) and s 17U(2)(a) & (b) of the CA, and need to be considered separately on their merits. The 'consistence with purpose' tests have a stronger injunction on the Minister as they allow the technical knockout of concession applications irrespective of other considerations.(14)
The Minister "shall not grant applications" contrary to the purpose for which the land is held, whereas the Minister "shall have regard to" the effects under s 17U(1)(b). The Minister's consideration of s 17U(3) should follow Buller Electricity Ltd v Attorney-General  3 NZLR 344. The plaintiff unsuccessfully argued that as the permitted purposes for land disposal were left unspecified the Minister could dispose of a stewardship area for the social and economic purpose of facilitating the plaintiff's hydroelectric scheme at Ngakawau.
Doogue J held that the Minister must uphold only conservation purposes and that social and economic purposes are irrelevant considerations. Buller Electricity Ltd was accepted as applying to concession applications in Franz Josef Glacier Guides Ltd; Anor v Minister of Conservation. Panckhurst J, HC Greymouth, CP 14-98, 13 October 1999.
If anything, s 17U(3) and s 49(2)(b) provide a stronger statutory direction to the Minister's consideration than Buller Electricity Ltd as they explicitly state the permitted purposes for concession applications within the parts of the two acts dealing with concessions.
In the Tongariro/Taupo LOTR report Three Foot Six Limited acknowledged that the filming of fantasy battle scenes is not an activity that normally occurs in the park but they argued that as the effects will be minimal the filming will not be inconsistent with the image and standing of the park (p 27). Further, Three Foot Six Limited claimed the filming will bring significant national and regional benefits in terms of spending on regional infrastructure and attracting tourism. Again, following Buller Electricity Ltd, these are irrelevant considerations.
Also the effects of filming a large cast within the Tongariro National Park were of concern to the Tongariro/Taupo Conservation Board and many DOC staff. The proposal was not supported by Ngati Rangi and Ngati Tuwharetoa. The Tongaririo/Taupo Conservator considered that commercial filming provides no direct recreational benefit to users of Tongariro National Park. (15) In spite of these concerns the Tongariro/Taupo report did not separately consider s 49(2)(b) NPA.
DOC is required by s 17W and s 17T(2) of the CA to grant only concession activities that are consistent with conservation management strategies and plans, whether or not the activity has been provided for.(16)
In the LOTR film concessions there are three types of inadequate performance of this requirement.
The Mainland Southland- West Otago conservation management strategy specifically prohibits motorised boats on South Mavora Lake. In spite of this prohibition Three Foot Six Limited were permitted to have a motor boat on South Mavora Lake. Forest and Bird and the Southland Conservation Board both objected to this but their concerns were considered to be resolved by adding special mitigating conditions.
DOC Tongariro/Taupo approved one activity considered to be prohibited by the management plan. The use of film vehicles off formed and maintained roads was approved, in spite of the specific prohibition in the plan, as the applicant had proposed sufficient measures to mitigate the effects (p 31).
The Tongariro/Taupo Conservation Board were unequivocal about the status of management plans:
"The Board is committed to supporting the integrity of this plan which was developed and approved after a statutory process involving significant public input. It cannot be overridden" (p 17).
There is no statutory authority for DOC to allow an activity prohibited by or inconsistent with a conservation management strategy. Indeed, s 17W(7) makes it a condition of every concession document that the concessionaire will act in accordance with the relevant conservation management strategy. DOC cannot authorise non-compliance with a conservation management strategy as s 17W(8) states that any provision of a concession document that contravenes a conservation management strategy shall have no effect. The approval of prohibited activities was simply unlawful.
The Tongariro National Park management plan provides for ‘promotional or commercial activities' such as filming. A policy statement allows such activities consistent with the image and standing of a national park The implementation statement has the provisos that the activity being filmed should be an activity which normally occurs in the park or is permitted by this management plan and that it is consistent with all other policies of the plan.
The Tongariro/Taupo report considered the LOTR application as a whole not entirely consistent with the Tongariro National Park management plan (page 21). Three Foot Six Limited were asked to comment. They admitted that the activity of filming fantasy battle scenes is not an activity that normally occurs in the park and is not generally permitted by the management plan (p 27).
They argued that if it is debatable whether the activity is provided for by the management plan then s 17W(2) allows the Minister to grant a concession for such an activity after mitigating the effects under s 17S, 17T and s 17U (p 28, para 4.4). Therefore, as the application does mitigate the effects, DOC should approve it.
DOC Tongariro/Taupo appear to have accepted this argument. The Tongariro/Taupo report considered whether the effects could be sufficiently mitigated of the five specific activities proposed by Three Foot Six Limited that were considered to be prohibited by or inconsistent with the management plan. These were:
The first three were declined as they could not be mitigated (p 28, para 4.5). In spite of the clear prohibition on the use of helicopters Three Foot Six Limited applied to Sandra Lee for reconsideration of this decision under s 17ZJ of the CA.(17)
To her credit Sandra Lee upheld the decision and commented that the legislative framework of the CA meant that no other decision was possible. The last two activities were approved as the mitigation measures were considered adequate.
Three Foot Six Limited proposed and DOC accepted a ‘heads we win, tails you lose argument'. Filming within Tongariro National Park is provided for in the plan. The requirements that filming must be consistent with are clearly stated. The filming must be an activity normally undertaken in the park, it must be consistent with the image and standing of the park and it must be consistent with all other policies (no horses, helicopters, or vehicles off roads).
Even if filming a fantasy battle sequence is not specifically provided for, the issue does not reduce to mitigation of effects as claimed. Section 17T(2) requires DOC to decline any application for an activity that is inconsistent with a conservation management strategy or a management plan, irrespective of whether the activity has been provided for or not. The LOTR filming activities were not consistent with the management plan and there is no statutory basis for DOC to approve activities that are inconsistent with a management plan on the grounds that the effects are adequately mitigated.
The Southland report approved filming with boats, up to 20 helicopter landings and 25 crew in a conservation area of high ecological significance and sensitivity, the Kepler Mire.
Figure 1. The Kepler Mire
This is a 560 hectare wetland some 15 km south of Te Anau and 5 km east of Lake Manapouri protected as conservation land. It is of international significance as it is the most extensive pool system of the string bog type in New Zealand. (18)
String bogs are usually found in the Northern Hemisphere. The significance and sensitivity to trampling are noted in the Mainland Southland - West Otago conservation management strategy. The Southland report considered that filming was consistent with the strategy as the potential effects to the wetland could be sufficiently avoided or minimised (p 29).
The Southland strategy clearly documents the high ecological significance and sensitivity of the Kepler Mire. This significance should have set the context for the assessment of the significance of effects and the consideration of consistence with the strategy. The potential effects of 25 crew and boats and helicopters cannot logically be regarded as minor and mitigated given the international ecological significance and high sensitivity of the mire. The potential adverse effects should have been assessed as significant. The application to film on the Kepler Mire should have been declined.
Public notification of concession applications is provided for in s 17T(4) and s 17T(5) of the CA. Leases and licences must be notified unless they are being renewed (s 17T(4)). For film permits (and easements) the Minister may, if it is considered appropriate having regard to the effects, give public notice of the intention to grant the application (s 17T(5)).
If the concession application is notified, a notification period of 40 working days is required under s 49(2)(b) of the CA and submissions may be filed in that time period. Submitters may request a hearing under s 49(2)(c). The submissions then become a further matter the Minister shall have regard to under s 17U(1)(f).
None of the seven film concession applications were publicly notified.
For the two VL reports no public notification was deemed necessary. In two applications (Nelson/Marlborough and Wellington LOTR) the reason given for non-notification was that the effects were minor and temporary. The Otago LOTR report stated that notification was not required as the application was for a low impact activity.
The Southland LOTR report concluded that given the mitigation measures and the consultation undertaken public notification was not necessary. The Southland and Tongariro/Taupo LOTR reports show that DOC consulted Forest and Bird, Fish and Game, the relevant conservation boards and iwi.
This consultation was used as a justification for non-notification. The consideration of the concerns expressed by these groups involved no more than adding conditions to avoid or mitigate adverse effects. That was also the response to Forest and Bird pointing out that it was unlawful to allow a motorised boat in South Lake Mavora when this was prohibited under the Mainland Southland - West Otago CMS.
The Tongariro/Taupo LOTR report stated that notification was not required as a representative view of public opinion had been obtained. The Tongariro/Taupo Conservation Board thought otherwise:
"the application, on its face, demonstrates significant effects and potential effects, rather more than some leases and licences for which notification is mandatory."Further the board described the process as fast-tracked and pointed out that consultation with the Board and within the conservancy, which would be done in any case, was no substitute for public notification. It is hard to disagree with their conclusion that the described effects were prima facie significant and that public notification was appropriate.
The Minister is required, in deciding to notify an application under s 17T(5), to consider effects, not effects and mitigation measures. DOC appears to be interpreting s 17T(5) as if "effects" read "effects and mitigation measures" in deciding not to notify the film concession applications. DOC's interpretation of s 17T(5) and its action in not notifying the film concessions is in contrast with the intention of the Parliamentary select committee which prepared the legislation. They considered public consultation to be an essential part of the process. (19)
The Minister has the discretion under s 17T(3) of the CA to decline a concession application where it is inappropriate. (20)
This statutory test is not specifically addressed in any of the seven film concession reports. It is hard to see how the potentially damaging use of an ecologically sensitive area of international significance such as the Kepler Mire for filming a fantasy film could be considered appropriate. The same comment applies to the use of Tongariro National Park given the opposition of the Tongariro/Taupo Conservation Board, the lack of support from Ngati Rangi and Ngati Tuwharetoa and the concerns of many DOC staff.
Vertical Limits and the Lord of the Rings have been perhaps the most significant and high-profile concessions for commercial use of conservation areas approved to date. In the seven reports approving the film concession permits all the other important statutory considerations, consistence with CMS and plans, consistence with conservation purposes and the public notification process, have been reduced to a consideration of whether the effects have been adequately mitigated.
Two specific activities prohibited by a CMS or management plan, the use of motor boats in South Mavora Lake and the use of film vehicles off formed roads in Tongariro National Park, were unlawfully approved as their effects were regarded as mitigated. Three specific activities prohibited by a management plan, use of horses, use of helicopters and use of the Mangaturuturu area, were only declined after mitigation measures had been discounted.
There is barely any evidence that DOC was making any serious effort to consider whether the film activities were consistent with the conservation purposes of the areas applied for. It appears that DOC was motivated by the irrelevant purpose of facilitating films instead of upholding conservation purposes as required by both the CA and the NPA. Filming of a fantasy film was considered consistent with the conservation of the Kepler Mire, a wetland of international ecological significance, in spite of that significance and its fragility being clearly noted in the Mainland Southland - West Otago CMS.
In all the applications the effects, on their face, justified public notification. Yet, contrary to the wording of s 17T(5) of the CA, these effects were in all cases regarded as adequately mitigated to allow non-notified approval. Conservation boards and NGOs and iwi were consulted, within very short time frames, about some of the applications, but their concerns were always considered to be adequately dealt with by mitigation measures.
The relationship of the effects and mitigation considerations to the other more conservation-oriented considerations has been inverted by DOC. Instead of using public notification and consistence with conservation purposes and with CMS to evaluate the significance of effects, the subjective consideration of effects and mitigation by DOC officials are being used to evaluate the need for notification and consistence with CMS and conservation purposes.
This is not the correct interpretation of the legislation as the statutory tests for consistence have a technical knockout wording. It is also contrary to environmental impact assessment methodology.
The result has been a failure to uphold conservation purposes and a misplaced facilitation of the use of conservation areas by commercial interests contrary to the Buller Electricity principle. The fact that all the seven film concessions suffer from these deficiencies indicates that these problems are likely to be symptomatic of all DOC's concession approvals.
1. Wingnut Films, Wingnut Films announces Lord of the Rings. Press Release, 24 August 1999.
2. New Zealand Government, Lord of the Rings to film on conservation land. Press Release , 11 November 1999.
3. Vertical Limit filming monitored. Press Release , 31 July 1999.
4. In this paper a reference to the Minister means the DOC employee acting as the Minister's delegate.
5. Johnson, S. and Lloyd, K. (2002). Environmental assessment of concessions for tourism and commercial activities under the Conservation Act 1987. 4 BRMB 9:100-105.
6. DOC (Southland Conservancy), Concession Application: Three Foot Six Limited Filming Permit "Lord of the Rings". 3 November 1999. Te Anau.
7. DOC (Wakatipu Area Office), Non-notified Application for a Concession by: Three Foot Six Limited, 31 November 1999. Queenstown.
8. DOC (Nelson/Marlborough Conservancy), Filming Application: Three Foot Six Limited Final Report. 11 October 1999. Nelson.
9. DOC (Wellington Conservancy), Non-notified Application for a Variation to a National Concession by: Three Foot Six Limited. 19 February 2001.Wellington.
10. DOC (Tongariro/Taupo Conservancy), Application for a Concession by: Three Foot Six Limited (Lord of the Rings) 7 March 2000. Turangi.
11. DOC (Canterbury Conservancy), Application for a Concession by the Vertical Limit: Aoraki/Mount Cook National Park. 22 June 1999. Christchurch.
12. DOC (Southern Regional Office)Application for a Concession by the Vertical Limit: Mount Aspiring National Park, Rastus Burn Recreation Reserve, Remarkables Conservation Area. 11 June 1999.
13. DOC, supra note 2. see pages 3 to 22 for effects, see page 26 for consistence with purpose, s 17U(3) CA.
14. Johnson, S. and Lloyd, K., supra page 101-102.
15. DOC (Tongariro/Taupo Conservancy). Lord of the Rings - Application to film in Tongariro National Park. Conservators Report. Green, P. 7 March 2000.
16. Johnson, S. and Lloyd, K., supra page 103.
17. New Zealand Government. Lord of the Rings permitted to film within Tongariro National Park. Press Release, Hon Sandra Lee, 24 March 2000.
18. Burrows, C. J and Dobson, A. T. (1972). Mires of the Manapouri - Te Anau Lowlands.Proc. NZ Ecol. Soc. 19:75-99. For a photograph of Kepler Mire see http://www.ipcc.ie/pwnewzland06.GIF.
19. New Zealand House of Representatives. Conservation Amendment Bill (No. 2). Report of the Planning and Development Committee (1995), Wellington. p 11.
20. Johnson, S. and Lloyd, K., supra page 103.
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