Simon Johnson looks at DOC's approval of the Lord of the Rings film concession. He argues that effects and mitigation were used as a 'trojan horse', to get inside the conservation estate without public notification and despite inconsistencies with conservation management strategies and plans.
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)
The film was a concession approved by Department of Conservation following the concession approval process in Part IIIB, s 17O to s 17ZJ of the Conservation Act 1987. This process has been described in a paper which concluded that several statutory tests are sometimes not adequately performed by DOC. (3)
This analysis confirms this view. DOC has treated the statutory tests concerning effects and mitigation as a "trojan horse", that allowed the applicant, Three Foot Six Limited, to get past the requirement for consistence with management plans and the requirement for public notification.
Applications from Three Foot Six Limited for the Lord of the Rings were granted in five DOC conservancies. These conservancies, and some details of the sites and filming are listed:
DOC is required by s 17W(1) and s 17T(2) of the Conservation Act 1987 to grant only concession activities that are consistent with conservation management strategies and plans, whether or not the activity has been provided for. (9) In the LOTR concessions there are three types of inadequate performance of this requirement:
The common element is that consistence with management plans was treated as being subject to the mitigation of effects.
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(2), s 17T(2) and s 17U (1) and (2) (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 Conservation Act 1987. (10)
To her credit Sandra Lee upheld the decision and commented that the legislative framework of the Conservation Act 1987 meant that no other decision was possible. The last two activities were approved as the mitigation measures were considered adequate.
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.
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 Tongariro/Taupo report stated that notification was not required as a representative view of public opinion had been obtained. The Tongariro/Taupo Conservation Board thought otherwise (p 16).
"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. DOC is required, in deciding to notify an application under s 17T(5), to consider effects, not effects and mitigation measures. DOC's 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. (12)
Three specific activities prohibited by a management plan, use of horses, use of helicopters and use of the Mangatururu area, were only declined after mitigation measures had been discounted. Filming of a fantasy film was considered acceptable in 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 conservation management strategy.
In all the applications the effects, on their face, justified public notification. Yet, 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 management plans to evaluate the significance of effects, DOC is using the subjective consideration of effects and mitigation to evaluate the need for public notification and consistence with management plans and conservation purposes. In this way effects and mitigation have become a trojan horse enabling Three Foot Six Limited to get inside the conservation estate.
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 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.
4 DOC (Southland Conservancy), Concession Application: Three Foot Six Limited Filming Permit "Lord of the Rings". 3 November 1999. Te Anau.
5 DOC (Wakatipu Area Office), Non-notified Application for a Concession by: Three Foot Six Limited, 31 November 1999. Queenstown.
6 DOC (Nelson/Marlborough Conservancy), Filming Application: Three Foot Six Limited Final Report. 11 October 1999. Nelson.
7 DOC (Wellington Conservancy), Non-notified Application for a Variation to a National Concession by: Three Foot Six Limited. 19 February 2001. Wellington.
8 DOC (Tongariro/Taupo Conservancy), Application for a Concession by: Three Foot Six Limited (Lord of the Rings) 7 March 2000. Turangi.
9 Johnson, S. and Lloyd, K., supra page 103.
10 New Zealand Government. Lord of the Rings permitted to film within Tongariro National Park. Press Release, Hon Sandra Lee, 24 March 2000.
11 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.
12
New Zealand House of Representatives. Conservation Amendment
Bill (No. 2). Report of the Planning and Development Committee
(1995), Wellington. page 11.
