New Zealand Legislation: Acts

5 Procedure for declaring a marine reserve

• (1) No Order in Council shall be made under section 4 of this Act unless—

  • (a) Application for the Order in Council is made to the Director-General by one or more of the following:

    • (i) Any university within the meaning of the Universities Act 1961:

    • (ii) Any body appointed to administer land subject to the Reserves Act 1977 if such land has frontage to the seacoast:

    • (iii) Any body corporate or other organisation engaged in or having as one of its objects the scientific study of marine life or natural history:

    • (iv) Maori iwi or hapu who have tangata whenua status over the area:

    • (v) The Director-General:

  • (b) Notice of intention to apply for an Order in Council declaring the area a marine reserve has, after consultation with the Director-General, been published by the applicant for the Order at least twice, with an interval of not less than 5 nor more than 10 days between each publication, in some newspaper circulating at or nearest to the place where the area is situated, and at least once in each of 4 daily newspapers, one of which shall be published in Auckland, one in Wellington, one in Christchurch, and one in Dunedin:

  • (c) Every notice published pursuant to paragraph (b) of this subsection—

    • (i) States the date of first publication of that notice:

    • (ii) States the place where the plan referred to in subsection (2) of this section may be inspected:

    • (iii) Gives a general description of the area proposed to be declared a marine reserve:

    • (iiia) states the proposed name of the proposed marine reserve:

    • (iv) Gives an address for service:

    • (v) Calls upon all persons wishing to object to the making of the Order to send their objections in writing, specifying the grounds thereof, to the Director-General within 2 months from the date of first publication of the notice and to serve a copy of the objections, specifying the grounds thereof, on the applicant within the same time:

  • (d) Notice in writing of the proposed marine reserve is given by the applicant to—

    • (i) All persons owning any estate or interest in land in or adjoining the proposed reserve. For the purposes of this subparagraph, land shall be deemed to adjoin a proposed marine reserve notwithstanding that it is separated from it by the foreshore or by any road, or that is at a distance of not more than 100 metres from the proposed marine reserve if separated from it by any other reserve of any kind whatsoever or any marginal strip within the meaning of the Conservation Act 1987:

    • (ii) Any harbour board if the area or any part of the area proposed as a marine reserve is within the jurisdiction of that harbour board:

    • (iii) Any local authority or public body in which the foreshore or the control of the foreshore is vested if that foreshore or any part of it is within the area proposed as a marine reserve:

    • (iv) The Secretary for Transport:

    • (v) The Director-General of Agriculture and Fisheries.

  (2) The Director-General shall cause a plan to be prepared on a suitable scale showing all tidal waters coloured blue, and the boundaries and extent of the area sought to be declared a marine reserve. The plan shall be open for inspection free of charge during ordinary office hours by any person at the office of the Department nearest to the proposed reserve.

  (3) All persons wishing to object to the making of the Order shall, within 2 months from the date of first publication of the notice published pursuant to paragraph (b) of subsection (1) of this section, send their objections in writing, specifying the grounds thereof, to the Director-General and shall serve a copy of their objections, specifying the grounds thereof, on the applicant within the same time.

  (4) The applicant may, on receiving any copy of objections under subsection (3) of this section, answer those objections in writing to the Director-General within 3 months from the date of first publication of the notice published pursuant to paragraph (b) of subsection (1) of this section, and the Director-General shall send any such answer he may receive within that time to the Minister for consideration.

  (5) The Director-General shall refer to the Minister all such objections received within the said period of 2 months, and any answer received within the said period of 3 months.

  (6) Where any objection has been made in accordance with subsection (3) of this section, the Minister shall, before considering the application, decide whether or not the objection should be upheld and, in doing so, shall take into consideration any answer made to the objection by the applicant and, if the applicant is the Director-General, any report on the objection and the application the Minister may have obtained from an independent source. If the objection is upheld the area shall not be declared a marine reserve. In making any such decision, the Minister shall not be bound to follow any formal procedure, but shall have regard to all submissions made by or on behalf of the objector, and to any answer made by the applicant, and shall uphold the objection if he is satisfied that declaring the area a marine reserve would—

  • (a) Interfere unduly with any estate or interest in land in or adjoining the proposed reserve:

  • (b) Interfere unduly with any existing right of navigation:

  • (c) Interfere unduly with commercial fishing:

  • (d) Interfere unduly with or adversely affect any existing usage of the area for recreational purposes:

  • (e) Otherwise be contrary to the public interest.

  (7) The decision of the Minister shall be final.

  (7A) Before the decision of the Minister becomes final under subsection (7), the proposal must, to the extent that it relates to the proposed name of the proposed marine reserve, be referred to the New Zealand Geographic Board under section 27(2) or 30 of the New Zealand Geographic Board (Ngā Pou Taunaha o Aotearoa) Act 2008, as the case may be.

  (8) The Director-General shall cause the Minister's decision, together with the grounds therefor, to be notified in writing to the objector and to the applicant.

  (9) If, after consideration of all objections, the Minister is of the opinion that no objection should be upheld and that to declare the area a marine reserve will be in the best interests of scientific study and will be for the benefit of the public, and it is expedient that the area should be declared a marine reserve, either unconditionally or subject to any conditions (including any condition as to providing the cost of marking the boundaries of the marine reserve under section 22 of this Act, and any condition permitting fishing within the reserve by persons not holding a permit issued under Part 4 of the Fisheries Act 1983), the Minister shall, if the Ministers of Transport and Fisheries concur, recommend to the Governor-General the making of an Order in Council accordingly.

  (10) If notice is required by this section to be given to any person, it shall be deemed to be given to all the owners of any Maori land within the meaning of the Maori Affairs Act 1953, when it is given to such owners as have been nominated for the purpose by the Registrar of the Maori Land Court at the request of the person required to give the notice. On receiving any such request the Registrar shall nominate all owners whose current addresses are known to him.

  (11) For the purposes of this section the expression “estate or interest in land” shall include any mining interest.

  (12) This section shall bind the Crown.

  Subsection (1)(a) was amended, as from 14 February 1978, by section 3(1) Marine Reserves Amendment Act 1977 (1977 No 136) by inserting the words “, or the Director-General”. The reference to the Reserves Act 1977 in subsection (1)(a) was substituted, as from 1 April 1978, for the reference to the Reserves and Domains Act 1953, pursuant to section 125 Reserves Act 1977 (1977 No 66).

  Subsection (1)(a) was amended, as from 1 April 1981, by section 80(1) National Parks Act 1980 (1980 No 66) by substituting the words “Director-General of Lands” for the words “National Parks Authority”.

  Subsection (1)(a) was amended, as from 1 April 1987, by section 65(1) Conservation Act 1987 (1987 No 65) and section 11(1) State-Owned Enterprises Amendment Act 1987 (1987 No 117) by omitting the words “or the Director-General of Lands”.

  Subsection (1)(a) was substituted, as from 1 October 1996, by section 316(1) Fisheries Act 1996 (1996 No 88). See clause 2 Fisheries Act Commencement Order (No 2) 1996 (SR 1996/255).

  Section 5(1)(c)(iiia): inserted, on 1 November 2008, by section 38 of the New Zealand Geographic Board (Ngā Pou Taunaha o Aotearoa) Act 2008 (2008 No 30).

  Subsection (1)(d)(i) was amended, as from 9 October 1975, by section 2 Marine Reserves Amendment Act 1975 (1975 No 90) by substituting the expression “100 metres” for the expression “5 chains”.

  Subsection (1)(d)(i) was amended, as from 1 April 1987, section 65(1) Conservation Act 1987 (1987 No 65) by substituting the words “or any marginal strip within the meaning of the Conservation Act 1987” for the words “or any land reserved from sale or other disposition pursuant to section 58 of the Land Act 1948 or the corresponding provisions of any former Land Act”.

  Subsection (1)(d)(iv) was inserted, as from 1 September 1972, by section 6(1) Ministry of Agriculture and Fisheries Amendment Act 1972 (1972 No 3).

  Subsection (1)(d)(v) was inserted, as from 1 April 1987, by section 65(1) Conservation Act 1987 (1987 No 65).

  Subsection (2) was amended, as from 1 September 1972, by section 6(1) Ministry of Agriculture and Fisheries Amendment Act 1972 (1972 No 3) by substituting the word “Department” for the words “Marine Department”.

  Subsection (6) was amended, as from 14 February 1978, by section 3(2) Marine Reserves Amendment Act 1977 (1977 No 136) by inserting the words “and, if the applicant from an independent source”.

  Section 5(7A): inserted, on 1 November 2008, by section 38 of the New Zealand Geographic Board (Ngā Pou Taunaha o Aotearoa) Act 2008 (2008 No 30).

  Subsection (9) was amended, as from 1 September 1972, by section 6(1) Ministry of Agriculture and Fisheries Amendment Act 1972 (1972 No 3) and was amended, as from 14 February 1978, by section 3(3) Marine Reserves Amendment Act 1977 (1977 No 136).

  Subsection (9) was amended, as from 1 April 1987, by section 65(1) Conservation Act 1987 (1987 No 65).

  Subsection (9) was substituted, as from 10 April 1990, by section 52 Conservation Law Reform Act 1990 (1990 No 31).

  Subsection (12) was inserted, as from 14 February 1978, by section 3(4) Marine Reserves Amendment Act 1977 (1977 No 136).

  The words “Director-General” referred to throughout the section were substituted, as from 1 September 1972, for the words “Secretary for Marine” pursuant to section 6(1) Ministry of Agriculture and Fisheries Amendment Act 1972 (1972 No 3).