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New Zealand Journal of Environmental Law |
Last Updated: 30 January 2023
51
The Distant Sound of Alarm Bells in the Wonder Country
Nature-based tourism is the premier example in international and national settings, whereby the economic, social and ecological goals of sustainable development can be reconciled. Nature-based tourism is at the forefront of New Zealand’s self- and marketing image. Vast amounts of economic wealth are already generated by nature-based tourism, and both the numbers of tourists and the revenues generated are expected to grow. However, the ecological basis of nature-based tourism in New Zealand is, in some areas, showing signs of stress that the ecological limits of which the tourism activities are built upon are approaching capacity. These examples range from the premier protected areas through to various species-based activities, of which whale watching is a prominent concern. In all instances, the pressure to keep expanding the activities needs to be reconciled with the repeated warning sounds that the activities upon which nature-based tourism is based are often very fragile.
1. INTRODUCTION
The thesis of this article is that some of the foundations of naturebased tourism in New Zealand are at risk. These risks threaten both the naturebased resource and the flow of tourists who come to visit them. These risks are most evident when viewed from an examination of best international practice. In this regard, although many of our protected areas of international significance are currently
*LLB, LLM(Hons), PhD, ProVice Chancellor of Research at Waikato University, Professor of Law, Recipient of fellowships from the Foundations of Rotary, Fulbright, Rockefeller and New Zealand Law.
52 New Zealand Journal of Environmental Law
not transgressing expected standards for the management of such areas, in other instances, bestpractice standards are not being met.
2. THE PROMISE AND PURSUIT OF NATURE-BASED TOURISM
Travel writers of the late nineteenth century referred to New Zealand as “the wonder country” and confidently predicted that, in time, tourists would flow to see the features of the far side of the Antipodes.1 These predictions were quickly borne out, as the newly created Department of Tourist and Health Resorts revealed just over 5,000 visitors per year at the very beginning of the twentieth century. By the end of the first decade of the twentyfirst century, the number of international visitors was close to 2,500,000 per year. These tourists contribute a total of $5.951 billion to the domestic economy, 16 per cent of New Zealand’s export earnings, 6.4 per cent of its gross domestic product, and support one in ten positions of employment. Projections are that by 2015 there will be 3.5 million arrivals per year.2 Although these numbers sound large, they remain only a small fraction of the global market in this area. In the year of 2009, some 880 million people travelled away from their home country as tourists, spending an estimated US$852 billion on their travels. It is expected that this number of tourists will grow in the future to an estimated 1.6 billion international tourist arrivals in 2020.3
A large percentage of these people want to view and/or interact with the natural world as “ecotourists/nature tourists” or purveyors of “sustainable tourism”. Unfortunately, these terms are very difficult to define, let alone distinguish from other forms of tourism. The only possible distinction may be that “environmentalfocused” visitors are drawn to the natural environment, and should make a potential positive contribution to the conservation related to it.4 Beyond this simplistic definition, activities within the nomenclature range from walking in a park through to taking a cruise through pristine waters on an
The Distant Sound of Alarm Bells in the Wonder Country 53
ocean liner.5 Despite these differences in classification, the overall orthodox view is that naturebased tourism can, if well managed, create clear benefits. These include, inter alia, revenue creation for the conservation of both areas and species, contribution to economic development, funded infrastructure and services, the provision of employment and funds for sustainable practices, alternative ways for communities to raise revenue from biological diversity, and helping public education and awareness. As such, carefully managed tourism can be an exemplar of the sustainable use of biodiversity in particular and sustainable development in general, bringing benefits to protected species and protected areas, as well as related human communities.6 With such obvious benefits, the ideal of sustainable tourism has been formally endorsed at the global level at the 2002 World Summit on Sustainable Development7 and by the Parties to the Convention on Biological Diversity.8 It has also been endorsed by international organisations such as the Global Environment Facility9 and the International Union for the Conservation of Nature (IUCN).10These are not new recognitions for New Zealand. From the Victorian outset, the appeal of New Zealand to foreign tourists lay in naturebased tourism. The country had no Saint Mark’s in Venice, no castles on the Rhine, or the historyladen streets of Paris. What it offered, according to the early guidebooks, was magnificent alps, noble forests, charming lakes and startling volcanic formations — scenery as romantic and dramatic as anywhere in the world. With such to recommend it, welltodo tourists were travelling to see the beauty of New Zealand (as well as its indigenous people) as early as 1870. The Heritage Hotel was built in 1884 and the Milford Track was opened six years later, in 1890. The journey would then go past Franz Josef and Fox glaciers.
New Zealand Journal of Environmental Law
The discerning tourist would then cross to Wellington and take a steam boat up the Whanganui River, which was known to visitors as “the Rhine of New Zealand”. This was followed by a coach ride from Taupo through to what was then known as the “Hot Lakes District”. The Pink and White Terraces marked the climax of the tour.Although New Zealand was actively managing these areas of natural importance from the end of the nineteenth century, the objective of protecting nature and facilitating tourism at the same time became particularly prominent after the Second World War, with a number of pieces of legislation on forests,11 national parks,12 walking access,13 land14 and marine15 reserves. Typically, such legislation contained provisions such as s 3(2)(d) of the Marine Reserves Act 1971, which stipulates:
Subject to the provisions of this Act and to the imposition of such conditions and restrictions as may be necessary for the preservation of the marine life or for the welfare in general of the reserves, the public shall have freedom of access and entry to the reserves, so that they may enjoy in full measure the opportunity to study, observe, and record marine life in its natural habitat.
In a similar manner, the Conservation Act 1987 obliges the Department of Conservation:16
[t]o the extent that any use of any natural or historic resource for recreation or tourism is not inconsistent with its conservation, to foster the use of natural and historic resources for recreation and to allow their use for tourism.
Supplemental documents, such as the Department of Conservation’s Marine Mammal Action Plan for 2005–2010 would stipulate that ensuring “people have opportunities to appreciate and benefit from their natural and historic heritage” was a primary goal for the Department.17
At the international level, the push towards sustainable tourism is producing remarkable outcomes in terms of the numerical growth of visitors to natural
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places or species of interest. This is not surprising given that somewhere between 20 and 40 per cent of all tourists have interest in some form of nature interaction and/or wildlife watching whilst away from their normal place of residence. As it stands, over 54 million adult American travellers are inclined to book with travel companies that strive to protect the environment, with 17 million placing the environment as a top priority in deciding which companies to patronise.18 In many instances, such people are drawn to the most spectacular of places and/or species. For example, at the end of the twentieth century 63 million people were visiting 116 natural World Heritage sites annually. Fifteen sites recorded over one million visitors per year (eight of these in the United States) with the Great Smokey Mountains having the highest number (9,265,667). Thirtyone World Heritage natural sites in the United States, Canada, Australia and New Zealand accommodated over 52 million visitors each year. For the 30 sites in Africa for which data is available, the average visitor numbers were 22,705 per year while the average for the 16 sites in Canada and the United States was 2.6 million per year. Even within domestic markets the numbers of visitors to protected areas can be large. For example, somewhere between 10 and 20 million people visit national parks in the United Kingdom annually. Denali National Park in Alaska receives over 400,000 visitors per year, while Urho in Finland receives almost 200,000.19 In 2004–2005 Antarctica was visited by 28,739 tourists.20Such numbers are already generating vast amounts of revenue and these amounts are expected to increase. Consider, in the mid1990s, nature tourism and visits to national parks in Costa Rica were estimated to generate over US$600 million per annum. By 2001 this figure was over US$1 billion, and had trebled to US$3 billion by 2004. Australia’s top eight national parks were estimated to be bringing in AU$2 billion per year with about a quarter of this sum coming from the Great Barrier Reef.21 In terms of the highest economic worth of an individual site, Yosemite in the United States generates approximately US$1.3 billion per year. Even remote, singular, protected areas such as Auyuittuq National Park in Canada, with only 500 visitors per year, still obtained US$175,000 from the process. Other initiatives involve areas which are not formally protected, but perhaps should be, such as parts of the Amazon
New Zealand Journal of Environmental Law
rainforest which have seen ecotourism increase twentyfold in some areas (to over 60,000 visitors per year) and thus provide strong economic justifications for the conservation of the area.22In addition to the economic value of protected areas with species in them, some species, on a standalone basis, can generate staggering amounts of money while also generating good practices that generate longterm interest in the survival of the species. These practices may be either consumptive or nonconsumptive. With regard to some consumptive uses of some species such as trophy hunting, when carefully regulated, economic benefits can, in some instances, generate conservation incentives.23 There are over seven million hunters in Europe alone. It is estimated that hunting provides the basis for over 120,000 jobs in Europe, and that 20 to 30 per cent of the European hunters who travel abroad, at least occasionally, for hunting purposes each pay 1,500 Euro (although German hunters typically pay up to double this amount). Such sums can quickly accumulate and provide large amounts of foreign revenue to some countries. For example, in the late 1990s, Zimbabwe raised some US$254 million through sport hunting, followed by South Africa at US$140 million and Tanzania at US$100 million. In Botswana hunters are willing to pay up to US$30,000 to shoot a lion and in Zimbabwe £15,000 to kill an elephant. Hunters can kill bears in Rumania, and on the border of Afghanistan and Pakistan hunters are willing to pay up to US$48,000 to shoot four Afghan urials. Such sums in Pakistan have meant that the locals have gone to great lengths to ensure the survival of the animal population, which has now risen in population terms from around 200 individuals when trophy hunting first started to 3,136 in 2007.24
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Nonconsumptive utilisation can also generate remarkably large sums. For example, butterfly watching (and sales) is big business. There are over 50 butterfly houses in the world; although most are in Europe or in North America, more are being created in the developing world and are proving very popular with tourists. The worldwide sale of butterflies for collecting is over US$100 million and when these are carefully farmed (unlike the 11 per cent of the global trade in butterflies taken from the wild), the conservation benefits can be strong. This is especially so when it can be shown that butterfly ranchers can earn more from wild butterflies by utilising their traditional habitat than converting it into cash crops. Elsewhere, in the Congo ( prior to the civil war), gorillawatching operations were generating over US$1 million per year in tourist income, with gorilla tourism becoming Rwanda’s top earner of foreign currency from 2006 onwards.25 Ecotourism in the tiger range states has large economic potential. Each lion in Kenya is thought to be worth US$27,000 per year in tourism revenues. Sea turtles and their nesting grounds are also strong magnets for tourists. Each hawksbill turtle is estimated to be worth US$30,000 to the local resort economy.26 By 2001, the whalewatching industry was active in over 65 countries and attracting more than nine million participants per year. In some small countries such as Tonga, whale watching has become the single most important tourist attraction. In 2003, in Australia, more than 1.6 million visits were made to watch whales. This is more than double previous numbers five years earlier. In 2008, it was shown that in Latin America whale watching had grown at an average rate of 11.3 per cent per year and the 885,679 watchers in 2006 were spending $79.4 million in ticket prices and $278.1 million in total expenditure. Overall, in the same year (2008) the whalewatching industry was reaping US$2.1 billion per year. As such, it had more than doubled in less than eight years.27
New Zealand Journal of Environmental Law
The exact amount of income generated from “sustainable tourism” in New Zealand is difficult to ascertain. It is difficult to ascertain because the consumptive value of sustainable tourism (say fishing) is not considered in most calculus in this area, yet by many definitions, this type of activity contributes millions of dollars to the economy each year. With regards to non consumptive uses via sustainable tourism, the patchy information available from within the conservation estate suggests that the figures appear large; consider, the 260,000 people who visit the Goat Island Marine Reserve each year where $12.5 million is spent in the local economy. Fiordland National Park is responsible for 1,600 jobs and injecting $196 million into the local economy on an annual basis. The five Southern Lakes ski areas, the Remarkables, Coronet Peak, Treble Cone, Cardrona and Waiorau Snowfarm (the first three being within the conservation estate and the last two privately owned), bring $153.3 million (and 3,300 jobs) into the region per year. Up north, the Mt Ruapehu ski fields create 2,142 jobs and generate $45.6 million in the local area.28 The direct benefits of the wildlife of Otago Peninsula are estimated at $6.5 million per year, with a multiplier of an extra $100 million into the regional economy, resulting from the wildlife attraction leading to people staying longer in the region. The total number of people employed due to the albatross, penguins and seals in this area is in the region of 800–1,000 fulltime positions. Similar figures are available for Kaikoura, which has gone from an economic backwater to a very vibrant region with over 1,000 jobs (300 directly, and 700 indirectly) created on the back of ecotourism.29 Despite this history, since the early 1980s, New Zealand has actively associated itself with this “new” type of environmentally focused visitor, whereby both profit and conservation can be achieved at the same time. This quest has been supplemented with what was originally known as “Extreme New Zealand”, as evidenced by a visitor hurtling through the sky with a rubber band attached to their ankles, swinging into canyons and scudding through white water. In all of these instances, the air was clear, the canyons were deep and the white water led to an ocean full of exotic megafauna. This vision of “Extreme New Zealand”, overlapping with international blockbuster movies like The
Hoyt Whalewatching 2001: Numbers, Expenditures and Socio-Economic Benefits (IFAW, London, 2001) at 3; Report of the International Whaling Commission 48 (1998) at 19.
— 20 Years on (University of Queensland, Working Paper No 144, November 2007) at 19–20; Chrys Horn, David G Simmons and John R Fairweather Evolution and Change in Kaikoura: Responses to Tourism Development (Tourism Research Centre, Lincoln University, Report No 6, 1998); Geoff Butcher, John R Fairweather and David G Simmons The Economic Impact of Tourism on Kaikoura (Tourism Research Centre, Lincoln University, Report No 8, 1998).
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Lord of the Rings which showcased magnificent natural vistas, culminated in a highly successful “100% Pure” New Zealand brand.30 The end result has been the creation of a very strong image of New Zealand as a pure, spectacular — yet unadulterated — country that is available to escape to from an increasingly crowded, complex and polluted world. This creation has been very successful, as seen with evidence like the New Zealand edition of the popular Lonely Planet travel guide being the bestseller of the entire Lonely Planet series, repeatedly. Likewise, a number of highly influential international environmental nongovernmental organisations have even created their own complimentary travel guides to New Zealand. These guides help reflect the fact that, although approximately 60 per cent of New Zealand tourism is generated by domestic visitors, with ecotourism, over 64 per cent of the visitors are believed to be international. As such, it is clear that the international visitors, more than the domestic ones, are valuing the naturebased tourism. The most popular activity engaged in by visitors to ecotourism operations in New Zealand is viewing wildlife.31Within New Zealand, naturebased tourism is seen as a “dynamic” sector. It has been estimated to be growing at between 10 and 30 per cent per year over the last decade. Estimates suggest there are just fewer than 500 commercial operations where natural resources are a core business component. The scale of these operations ranges from 100 visitors per year to over 100,000 visitors per year. Within this sector, some 376 of the naturebased operations are involved in some type of marine environment tourism (ranging from fishing and tour boating through to wildlife watching). Over 60 per cent of these noted seabirds as part of their operation, whilst 44 per cent suggested marine mammals were “a key part” of their operation.32 These figures are surprising given that some 74 permits are currently operational in 10 Department of Conservation Conservancies to view marine mammals (alone). This focus can be decentralised even further for a few key species — beyond a bird that lays an egg one quarter of its body weight (the kiwi), a mountain parrot (kea) and the nearest living relative to the dinosaur (tuatara) — which have become the international stars or “megafauna” in New Zealand; namely whales, albatrosses and migratory birds.33
New Zealand Journal of Environmental Law
Whale watching in New Zealand involves viewing a number of types of whales. However, the whales most commonly viewed by commercial operations are sperm whales, which are found in New Zealand’s waters throughout the year. Those encountered off the South Island are mostly young male adult and mature males. Models suggest that the total population of these whales is between 60 and 108 individuals.34 These individuals appear, predominantly off the Kaikoura Peninsula, due to a favourable mixing of ocean currents and the unusual nature of the adjacent ocean trenches (where depths in excess of 1,000 metres can be found just a few miles off shore). Additionally, squid are to be found in summer and grouper in the winter. Both of these species are favoured in the diet of the male sperm whale. The central place where all of these features combine is around Kaikoura. Thus, Kaikoura represents one of the few sites in the world where sperm whales can be relied upon to come close to the shore all year. The numbers of visitors coming to visit this species has risen from around 3,400 in 1987 to over 100,000 per year in the twentyfirst century.35The second species of megafauna in New Zealand are migratory birds in general, and one “E7” in particular. The most impressive migration observed in New Zealand each year, towards the end of September and into October, is the arrival of migrant waders. These birds have nested in the tundra regions of Siberia and Alaska, but are driven south as their habitats begin to freeze with the approach of the Arctic winter. The migrants vary in size from the largest, the domestic hensized eastern curlew, to the tiny, sparrowsized rednecked stint. By far the most numerous of these waders is the bartailed godwit, of which more than 100,000 visit these shores. The next in number are the red (lesser) knots and turnstones, with fewer numbers of various sandpipers, plovers and tattlers. Although migratory birds visit over 20 places throughout New Zealand, one area, the Firth of Thames, is of particular interest. The Firth of Thames is ranked as one of New Zealand’s three most important areas for shorebirds and annually hosts more than 49 different migratory bird species, numbering some 20,000 individuals. Awareness that several species of Arctic waders were visiting the Firth of Thames first occurred in 1948, and over successive decades, researchers kept adding different waders to the list of visitors. The bartailed godwit, which is now the star of the show, was only added to the list in 1987. However, it was only in 2007 that this species was recognised for its stellar qualities. This was because in that year, the bartailed godwit known to
(International Whaling Commission, MWW/95/3, 1995) at 7 and 12.
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satellitetracking science as E7 spread her wings and took flight, leaving behind the northern shores of New Zealand. She flew nonstop for eight days before reaching China’s Yellow Sea. Five weeks later she headed east then took a sharp turn into the featureless Pacific before arriving at her breeding grounds in Alaska. By late August, she flew 19,000 kilometres back to New Zealand and set down at the Firth of Thames. This is the longest recorded migration on the planet, and people have begun travelling far and wide to see the unsuspecting species.36The limit in this area is that, although the figure of 20,000 birds at the Firth of Thames sounds large, in fact, this number is made up of multiple species which often only exist in the hundreds. Thus, whilst the godwit has a summer population of around 7,000, the winter population is only around 800. Their migratory neighbour the lesser knot only averages around 450 for the winter months. Thousands of people are now journeying to see this species, or at least, see them whilst en route elsewhere. This is considered quite an attractive option as the coast road that runs close to the shores of the Firth of Thames from Orere Point to the Coromandel (which alone attracts over 800,000 visitors per year) was designated the “Pacific Coast Highway” in 1996 and has since become a major tourist route for people leaving Auckland.37
The last piece of obvious megafauna of international significance in New Zealand is the albatross. The albatross is part of the family of pelagic tube nosed birds, or birds known by the order Procellariiformes. The species in this bracket range from the tiny storm petrels to the huge albatross. Within this group, for the purpose of this study, the northern royal albatross are most important. In terms of wingspan, the northern royal albatross is one of the largest of all seabirds. From wingtip to wingtip it can measure up to 3.25 metres (11 feet). This species ranges across the subAntarctic seas and the southern Pacific Ocean, feeding on squid and surface fish. During the breeding season the birds feed in the waters surrounding the South Island and in Cook Strait. The colony in focus for this study resides at Taiaroa Head, known to the Maori as Pukekura, at the entrance of Otago Habour. This colony may only be a century or so old. The first authenticated record of an egg being laid was in 1920 — although a tourist quickly stole this egg. Nevertheless, this is the only place in the world where albatross nest on an inhabited mainland. They have been monitored (and tagged) since 1937. All other nesting locations are located on outlying islands. About 27 pairs nest in the small colony on Taiaroa Head. This compares to a colony of 7,800 pairs on Campbell Island and 5,220 pairs
New Zealand Journal of Environmental Law
on the Chathams. All things going to plan, each pair has a single egg per year. Both sexes take turns at incubating and feeding the chick. The chick leaves the nest when about 36 weeks old, and migrates eastwards, encircling the southern oceans. The chick returns to the natal colony when six to seven years old, but does not nest until eight or nine years of age.38The first legislation to protect the royal albatross at Taiaroa Head was in 1939. However, this was not effectively implemented until 1951, when the first permanent ranger to the area was appointed. It was finally gazetted as a flora and fauna reserve in 1964. Seven years later in 1971, the New Zealand Wildlife Service, after negotiations with the Otago Peninsula Trust, agreed to regulate public viewing of the colony, via the guiding of visitors into the reserve, on a restricted basis. Throughout the 1970s, this process consisted of two afternoon tours three days per week with no more than 10 people. However, as demand began to increase in the 1980s, two new purposebuilt viewing observatories were built in 1983 and 1988. These structures helped facilitate some 25,000 people for the coming decade, before the numbers doubled again to around 50,000 visitors per year (via up to 21 daily tours) in 2000. By 2006 this had risen to 160,000 per year.39
3. THE DISTANT SOUND OF ALARM BELLS
Despite the clear economic benefits that can be accrued from naturebased tourism, it has been realised since the early 1960s that nature tourism is a doubleedged sword and that badly managed tourism can have farreaching environmental and social impacts, as many of the once beautiful places in, inter alia, Spain, Greece and Thailand can testify from the unrestrained weight of mass, lowbudget tourism.40 When dealing with the environmental impacts of poorly managed tourism, the examples are multiple, although it is difficult
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to extrapolate general instances. This is because the severity of the negative impacts varies considerably with the animal itself, its species, age, physical condition, stage of breeding, the kind of habitat it occupies and familiarity with human activities. The impacts of poorly managed tourism on species may range from shortterm changes in physiology or behaviour of individual animals through to longterm effects such as increased mortality or the reduced breeding success of entire populations. Shortterm effects can cumulatively develop into longterm impacts. With regards to some species of international importance, tourism is the second biggest killer of gorillas (due to the transmission of respiratory diseases), only slightly below the impact of civil war. Many raptors are sensitive to human disturbance near to their nesting sites, and this can be a particular problem for raptors that nest in the close vicinity of man, such as in coastal areas and in other popular tourist areas. Thus disturbance from tourists is thought to be a problem at some nesting colonies. Unrestricted rockclimbing during the breeding season can also be a problem for this and other cliffnesting species. Poor tourist practices have also been identified as having detrimental impacts upon sea turtles and dugongs.41 Tourism in the polar regions, due to the exponential growth in numbers and particularly vulnerable environments, is also a clearly recognised challenge for the twentyfirst century. In the Antarctic, these risks became most apparent in the 1990s when regular landings in, or low flying over, the habitats of king penguins led to thousands of deaths of the species the tourists were paying a premium to see.42In terms of protected areas or species, under the auspices of various regional or international bodies, it is clear that the threat of poorly managed tourism is recognised in a number of regimes which New Zealand is not signatory
Ananthaswamy “Beware the Ecotourist” (6 March 2004) 181 New Scientist 6; Andy Coghlan “Can Tourism and Wildlife Ever Mix?” (16 August 2008) 199 New Scientist 10; Stefan Gössling “Global environmental consequences of tourism” (2002) 12 Global Environmental Change 283; Martha Honey “Protecting Eden: Setting Green Standards for the Tourism Industry” (2003) 45(6) Environment 8; Martha S Honey “Treading lightly? Ecotourism’s impact upon the environment” (1999) 41(5) Environment 4; Dimitrios Dimopoulos “The National Marine Park of Zakynthos: A Refuge for the Loggerhead Turtle in the Mediterranean” (2001) 93 Marine Turtle Newsletter 5; Editor “Turtles Versus Tourists” (2001) 57 Marine Turtle Newsletter 31.
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to, such as the Man and Biosphere Programme43 and the (Berne) Convention on the Conservation of European Wildlife and Natural Habitat.44 It is also a problem within some regimes which New Zealand is a signatory to, such as the Convention on Wetlands of International Importance (Ramsar) and the World Heritage Convention. It is with regards to the latter that the problem of poorly managed tourism is most manifest. This is due to the fact that World Heritage sites usually attract large numbers of visitors which, if poorly managed, represent a clear threat to the integrity of the site and the values for which it was inscribed as World Heritage in the first place. This has been evident with many cultural listings. However, despite the obvious risk, a surprising number of World Heritage sites have no plans to manage tourism. This was particularly obvious with sites in Africa when it became apparent in 2002 that only one in three sites had a tourism development plan. Likewise, within Latin America and the Caribbean, a 2004 periodic review showed that 41 per cent of all sites in this region were without specific visitor or tourist plans.45 The Committee to the World Heritage Convention has recognised direct threats to the conservation of protected areas in numerous cases, including Iguaçu,46 Machu Picchu,47 the Peninsula Valdes,48 sites in China,49 South Africa,50 the United Kingdom,51
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India,52 Australia’s Great Barrier Reef,53 as well as sites in Russia,54 Vietnam,55 Mali,56 Iceland,57 the Philippines,58 Mexico,59 Nepal60 and Tanzania.61 The most famous site being inundated with tourists is the Galapagos. Here, there was a failure to control a problem which had been on the books since 1984 and was manifesting itself as 120,000 tourists per year in 2006, with projections of up to 400,000 per year by 2021. These poorly managed visitors were a key reason for it being recognised as, and remaining, classified as “in Danger” and at risk of losing the outstanding universal value for which it is recognised as being World Heritage.62The negative impacts of poorly managed tourism are also manifest in New Zealand. These manifestations, which have been increasing over the last decades, range from the congestion of many roads with campervans over popular parts of the year, through to rising prices in holiday accommodation. In terms of environmental limits, the first time this became an issue in New Zealand was in 1979 when 250,000 people per year were visiting the Waitomo
New Zealand Journal of Environmental Law
Caves to see the fragile glowworms. The problem with this number of people was that the lights began to fade as the conveyor belt of tourists were warming the atmosphere, increasing air flows and drying the cave inside via increased carbon dioxide levels. The glowworms could not survive in the lower humidity and the carbon dioxide was eroding the limestone formations. To restore light to this natural wonder, the caves had to be closed to allow the glowworms to recover and then, when reopened, the tour numbers were restricted and limited to a maximum number of people (200) in the caves at any one point.63 Despite this early wakeup call, the possibilities of tourists exceeding the beauty of surrounding environments continued to emerge throughout the 1980s, as a number of locations, such as Rotorua, Queenstown and Franz Josef village began to feel their capacity, if not their integrity, stretched. Even the New Zealand Tourism Council, despite wanting a more relaxed regulatory context in this area, was conscious that limits in some areas may be pending and that “guidelines for development in areas of environmental significance” may be required.64By the 1990s, concerns about the impacts of tourism upon the very spectacles the tourists were flocking to were being iterated by the Ministry of Tourism65 and the Parliamentary Commissioner for the Environment.66 This was especially so with two of New Zealand’s most popular World Heritage areas, namely, Te Wahipounamu — South West New Zealand and Tongariro National Park. Evidence was accumulating that key parts of these areas were coming “close to current capacity at peak times” during the 1990s. This was particularly so with Milford Sound, which was receiving up to 200 landings and takeoffs per day (within the area), as part of a process which built up to 500,000 visitors per year by the year 2010 (up 100 per cent since the year 2000). The Milford Track has become so popular that since the early 1990s, people intending to experience in solitude some of the most spectacular scenery on Earth have been forced to book in advance to form parts of groups that, during peak times (October–May), can walk the track only as part of a four day cycle, going in one direction, and setting off in capped numbers. Further up the South Island, Westland/Tai Poutini National Park became subject to a constant drone of aircraft and helicopters above the glaciers, as the noflight and
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nolandings policies became continually overlooked, whilst Abel Tasman Park was seeing around 180,000 visitors per year, including 75,000 day walkers, 24,000 overnight trampers, 29,000 kayakers, 10,000 day boat users, as well as 30,000 visits to the park by private boats, and 10,000 visits just using the beaches (note the foreshore was enclosed within the park in 2007 and some of the marine traffic was brought under control). In the North Island, visitors in winter to the ski fields in Tongariro National Park are close to 350,000 skiers per year, whilst the Tongariro Great Walk/Crossing was being traversed by up to 80,000 visitors per year. As an exemplar of these numbers, on one day in 2005, 1,200 walkers were recorded doing this walk.67 With such numbers and concentrations, it is no surprise that in addition to increased recordings of damaged infrastructure and surrounding areas within parks, assessments of international visitors in 2010 were beginning to show that, although the vast majority remain happy with the aesthetics of New Zealand’s most beautiful areas, 6.6 per cent of surveyed responses identified that “too many people” accompanied them during the experience and overcrowding of natural sites was becoming an emergent issue.68This problem of overcrowding has also been recorded outside of the areas under the auspices of the Department of Conservation, where tourism is governed by regional bodies and the Resource Management Act 1991. At this level, the Resource Management Act has begun to witness cases in which consents related to increasing tourism activities are contested, because further expansion would unduly damage the resource that the activity is built upon. For example, in Southern Alps Air Ltd v Queenstown Lakes District Council 69 the refusal to grant a resource consent (in accordance with the District Plan which sought to, inter alia, limit the adverse effects of motorised craft in the area) for further commercial jetboat operations on the Wilkin River was upheld. It was upheld because the existing environment of a highly scenic valley was already widely used by anglers, walkers and other recreational users and an additional 10 trips per day would have disproportionate significant and cumulative adverse
New Zealand Journal of Environmental Law
effects on amenity values and on levels of natural peace, quiet and sense of remoteness. It was explained:
We are particularly concerned that refusing consent would benefit [the other jetboat operator] as a trade competitor, but consider the adverse effects on amenities are so important as to outweigh the positive effects of [the] proposal. There will come a time on any river where cumulative effects of jetboats start to substantially diminish the amenities of other users, and we hold that environmental limit is already reached or nearly reached by [the existing] jet boats and the current operating environment, and is likely to be exceeded if [the applicant can get permission to] operate to its maximum of 16 jetboat trips per day. Granting a right to operate more jetboats will ruin the amenities of the Lower Wilkin River which the district plan seeks to protect without achieving enough benefits to outweigh those adverse effects.70
In terms of wildlife, the impact of inadequately regulated tourists inter acting poorly with protected species has been evident since the 1990s. In the first instance, in 1997, the Parliamentary Commissioner for the Environment recorded many examples of the disturbance of wildlife from tourist interactions including, inter alia, unregulated feeding of keas, poking seals and sea lions, and disturbing penguins by standing between them and their nests.71 Supplemental studies on the relatively unsupervised interaction between tourists and yellow eyed penguins on the Otago Peninsula (despite being within the DoC estate) also suggested the interactions were having a detrimental impact on the targeted species.72 Whilst not quite as pronounced, studies have also replicated similar concerns with regards to largely unregulated tourist interactions with seals and sea lions. In the latter, a number of cases of deliberate harassment have been recorded by tourists not visiting within organised tours, in attempts to get these mammals to respond for photographs, or harassing the sea mammals for cruel types of entertainment. The cumulative effects of these impacts are unknown.73
70 Ibid, at [101].
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The first example of species of international significance, namely alba trosses at Taiaroa Heads, emerged in the 1980s. This species, which is already under threat from bycatch, predators and ( potentially) climatic change, is also under enhanced risk from human disturbance, of which tourism is a clear manifestation.74 The risks of tourism have been evaluated with other (nonNew Zealand) species of albatross.75 In the case of New Zealand, the risks were particularly obvious when two new facilities were built to facilitate increased tourist demands during the 1980s. At this point, colony staff were aware of an apparent change in breeding patterns of the birds as the nesting birds tended to move to areas away from the public view as the available undisturbed land in the reserve was reduced by 50 per cent. Reluctant to conduct their courtship displays in public view, some pairs of albatross were known to nest in habitat which was suboptimal in terms of exposure of their chicks to conditions which required a large percentage to be assisted by human staff to survive at this location (over 70 per cent of all albatrosses are assisted at the point of egg and/ or when fledglings).76Similar concerns have also arisen with the interactions between tourists and marine mammals, and cetaceans in particular. With small cetaceans such as dolphins, following clear problems emerging with tourist–dolphin interactions in other parts of the world, the Department of Conservation undertook a series of reviews.77 This was especially so because, unlike many other countries, New Zealand allows swimming (but not feeding) with dolphins (and seals). The reviews of note in New Zealand were in 1995 and 1997 (in the Bay of Islands),78
(Department of Conservation, Science for Conservation Series No 106, Wellington, 1999) at 14–16.
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2007 (Doubtful Sound) and 2010 (in Kaikoura).79 In the case of the Bay of Islands and Kaikoura, although the Bay of Islands population was significantly smaller than the Kaikoura one (approximately 265 as opposed to 1,000) and no alarm bells were ringing in either instance, the evidence suggested that tourism interaction was creating behavioural changes in some instances that could have longterm flowon effects for animal welfare in terms of reduced resting, greater energy use and reduced social behaviour, and so on.In the case of Doubtful Sound, a much stricter approach was adopted as alarm bells started to ring that this population may be en route to extinction, and tourism may be the cause. That is, the population of bottlenose dolphins in the Doubtful Sound complex, which was 69 individuals at the end of 1994, had declined to 56 by the end of 2006. This decline is one of the steepest ever recorded for a dolphin population not exposed to direct or indirect takes from fishing. Rather, there is strong scientific evidence indicating that the effects of vessels in the area were impacting on the viability of the population of bottlenose dolphins.80
With regards to large cetaceans, the Department of Conservation was (and is) conscious that poorly planned tourism activities has led to detrimental impacts on whale species in other parts of the world, by which they may ultimately abandon a site.81 Accordingly, as the number of whalewatching vessels hit limits of up to three vessels watching one whale at a time, a series of reviews of the impacts of whale watching were undertaken, beginning in 199082
With-Dolphin Operations in the Bay of Islands (New Zealand): A Summary of Human/ Dolphin Interactions (Department of Conservation, Wellington, 1995).
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and repeated in 1992,83 199684 and 2003.85 All of these reports concurred that the industry was built around a surprisingly small number of tolerant sperm whales, and again, although no alarm bells were ringing, it was essential that a careful and cautious approach was followed if the goal was to ensure the population was not scared off. Thus, the 2003 review concluded that “given management options of reducing, maintaining or increasing the level of permitted whale watching activities, we recommend that the current level be maintained”.86
4. SOFT DOMESTIC AND HARD INTERNATIONAL RESPONSES
The most obvious necessity with regards to all of the above problems is for the government to adopt “a whole of sector model” from which all of the areas of naturebased tourist significance can be seen collectively, rather than in an ad hoc manner. This is especially so when areas of focus fall outside of the control of the Department of Conservation.87 However, a more forceful approach in which nature tourism is actively managed by the state is not the preferred option. Rather, successive governments have preferred to adopt a “soft” approach to ensure the environmental and market sustainability of naturebased tourism through voluntary certification and private selfregulation. For example, the Ministry of Tourism has adopted environmental accreditation
Boats off the Coast of Kaikoura (Department of Conservation, Wellington, 1991) at 1, 43, 45.
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(with regards to the percentage of Qualmark members that meet the criteria for Qualmark Enviro gold, silver or bronze accreditation) as one of its primary indicators of environmental sustainability of the tourism sector.88This approach is seen as largely consistent with international leaders in this area, like the United Nations World Tourism Organization,89 and an inter national marketplace wherein there are over 100 voluntary initiatives related to environmental standards and tourism. These range from ecolabels and certification schemes, through to prizes and awards, codes of conduct, and so on. The foremost mechanism in this area is the Green Globe Programme (which was developed by the World Travel and Tourism Council in 1994, and later reinvigorated in the new century under an International Certification Programme) and the Qualmark label. Although the Green Globe certification has been utilised by some businesses (and even surrounding communities),90 the Qualmark label is the dominant option in New Zealand. Whilst over 1,250 New Zealand tourism businesses were registered with Qualmark in 2005, by 2010 this figure had nearly doubled to a total of 2,296 Qualmarklicensed tourism businesses. Of these, 95 have achieved Envirogold, 209 have achieved Enviro silver and 106 have achieved Envirobronze.91
Such “green” certification programmes are helping to measure the impacts of tourism and to set soft standards for environmentally and socially responsible practices for tourism businesses, professionals and travellers. However, they should not be viewed as a panacea. Rather, they are part of a combination of tools, both voluntary and regulatory, that are needed to promote a sustainable industry. These voluntary mechanisms are limited by the aspirational and soft nature of the programmes, to which many operators may have a questionable commitment. Even the commitment of the New Zealand government may be
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in question, as unlike Australia where Ecotourism Australia offers certification for ecotourism businesses, New Zealand does not have a formal ecotourism certification programme. Most importantly, such voluntary schemes are limited by their voluntary nature. Thus, in New Zealand, studies suggest that around only 25 per cent of ecotourism operators are members of environmental certification schemes, with smallerscale operators in particular less likely to be members. In itself, this is not a surprise, for when compared to other OECD countries, New Zealand is particularly poor when it comes to companies joining and complying with voluntary mechanisms to protect the environment.92 The end result of this type of situation, as occurred in Ireland, where a lack of committed individuals combined with a less than interested government, was that their nature tourism ecolabel disintegrated due to a perceived lack of worth.93A much better way to both gauge and assess the management of nature based tourism in New Zealand is to juxtapose our practices against international expectations in this area. This is especially so with regards to international regimes to which New Zealand has already adhered. The need for standards in this area was first recognised at the international level at the 1972 Stockholm Conference on the Human Environment, from which it was recommended that the SecretaryGeneral of the United Nations:
take steps to ensure that the appropriate United Nations agencies shall assist the developing countries to plan for the inflow of visitors into their protected areas in such a way as to reconcile revenue and environmental considerations.94
Over subsequent decades, the World Summit on Sustainable Development,95 the
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World Parks Congress,96 the IUCN,97 the World Tourism Organization98 and the Parties to the CBD have all examined this area, and have all agreed that it needs to be carefully managed. To assist this process, in 2004 the Parties to the CBD adopted the voluntary guidelines on Biodiversity and Tourism Development.99 These generic guidelines have all been supplemented by specific regimes which have attempted to bring pressure to countries where tourism interactions have come to represent unsustainable futures. This is evident within both the Man and the Biosphere Regime100 and the Berne Convention.101 The regional Alpine102
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and Carpathian103 conventions have adopted similar practices. Similarly, where New Zealand does have an interest, such as in Antarctica, the Consultative Parties to the Antarctica Treaty, in their explicit objectives to protect the region from uncontrolled tourism, have come to limit the sites that can be visited, the amount of people that can go (no more than 100 per time, of which every 20 people must have a guide), and what they may do whilst on the ice.104The other convention with which New Zealand is familiar, which has been forced to deal directly with countries which have been unable to manage their tourism, is the World Heritage Convention. In this area, aside from some general discussions and dedicated workshops on the topic, the main approach of the Committee of the World Heritage Convention has been to address the problem in a sitespecific context.105 To do this, the Committee has dealt with considerations of tourism both before and after sites have been inscribed on the World Heritage List. With regard to the inscription stages, in some instances, applications have been deferred until the Committee was satisfied that tourist development was under control. In the 1980s, the Committee applied this approach to the New Zealand listing of Tongariro (at a time when tourist numbers were less than half what they currently are).106 Alternatively, applications have proceeded, conditional on the State Party controlling various tourist problems.107 More typically, the Committee has had to deal with considerations of tourism once the site has become established and the original controls on tourism have proven inadequate. Accordingly, the Committee has had to make recommendations to State Parties to control tourism with regard to natural sites which include Iguaçu,108 Machu Picchu,109 the Peninsula
Session of the WHC at 6.
109 UNESCO (1995) 18th Session of the WHC at 23; UNESCO (1996) 20th Session of the WHC at 30; UNESCO (1997) 21st Session of the WHC at 23; UNESCO (1998) 22nd
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Valdes,110 sites in China,111 South Africa,112 the United Kingdom,113 India114 and Australia’s Great Barrier Reef,115 as well as sites in Vietnam,116 Mali,117 Iceland,118 Mexico119 and Tanzania.120 In some instances, the Committee has recommended moratoriums or strict limits on further tourist developments in or around sites, such as with Sian Ka’an in Mexico.121 Alternatively, as with the sites of Ngorongoro and the Serengeti (both in Tanzania), the Committee has called for environmental impact assessments for tourist accommodation plans and vehicle congestion, and other measures to mitigate the negative impacts of tourism on the sites.122 In the case of Ngorongoro123 and MosieoaTunya (Victoria Falls),124 the Committee came to call for a complete moratorium on any new tourist lodge developments within the World Heritage sites. Overt failure to control problematic tourism, as seen with Bulgaria’s Pirin National Park, almost led to the park being inscribed as a Site in Danger.125 However,
Session of the WHC at 45–46; UNESCO (1999) 23rd Session of the WHC at 78; UNESCO (2002) 26th Session of the WHC at 39; UNESCO (2003) 27th Session of the WHC at 46.
18th Session of the WHC at 21.
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with the Galapagos, the failure of Ecuador to control, inter alia, tourist numbers, was identified as a key reason for the site being recognised as “in Danger”.126 In 2008, and in a clear reflection of what was perceived as a growing problem, the Committee was particularly vocal about the impact of tourism on the Russian Western Caucasus site,127 the Pyrenees,128 Machu Picchu129 and the Pirin National Park in Bulgaria.130 In all three of the last instances, it was clearly recommended that the sites be inscribed on the Danger List in the forthcoming year unless tourism at these sites was adequately controlled.The most important point to note about all of the above examples is that New Zealand, despite all of the growth of numbers and their implications mentioned above, has not (yet) been cited for failure of adequate control of tourists into its World Heritage sites. In large part, this success must be attributed to the Department of Conservation, which manages the three World Heritage areas (as well a further 3 Ramsar sites, 13 national parks, 20 forest parks, 33 marine reserves and some 3,500 reserves, within which there are 250 campsites, 960 backcountry huts, 10,000 kilometres of walking tracks, numerous roads, airstrips, jetties and picnic areas).131 Aside from times when disasters strike, such as at Cave Creek in 1995,132 and the continuously acrimonious process over the granting of concessions (there are over 500 businesses operating within protected areas),133 on the whole, the Department has come to manage each site and, inter alia, adequately control the flow of tourists, via “visitor strategies”.
COM/7B.23; UNESCO (2001) 25th Session of the WHC at 49–50; UNESCO (2003) 27th
Session of the WHC at 40.
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How much longer it will be able to continue this in the face of everincreasing demand is a question of speculation.134The other area of international significance for which the Department of Conservation has oversight is Ramsar sites. Ramsar sites are wetlands of international importance. It has taken New Zealand a long time to appreciate the values of wetlands. As it stands, wetlands (including lakes and rivers) currently occupy less than 2 per cent of New Zealand’s total land area, when once they constituted 20 per cent. Looking at these figures another way, this means that 90 per cent of the wetlands that were here when Europeans arrived are now gone.135 Part of the policy of rectifying this history has been through engagement with the Ramsar Convention. New Zealand became a party to the Ramsar Convention on Wetlands at the end of 1976 and has since listed six sites covering almost 55,112 hectares for inclusion in the List of Wetlands of International Importance. Two sites were immediately registered — Waituna Lagoon in Southland and Farewell Spit in Nelson. Another four have since been added: Kopuatai Peat Dome, Whangamarino, Manawatu River estuary and the Firth of Thames. The last of these, which is of direct interest to this study, was added in 1990. This 1990 addition is a geomorphic enigma of international significance, where a series of stranded beach ridges have formed on top of swamp deposits in a tectonically stable environment.
The Parties to the Ramsar Convention are familiar with countries which have allowed poorly regulated tourism to damage listed wetlands of international significance. Accordingly, they have set out areas of concern and made calls for controls of tourism problems with regards to the Dollarts shared by The Netherlands and Germany,136 the Donana site in Spain137 and Cuare in Venezuela.138 However, as with the World Heritage example, New Zealand has not suffered illrepute over its poor management of its wetland sites of international importance with regards to tourism. In part, this is not surprising as New Zealand has consistently underperformed in fully maximising both the ecological and economic value of both the listings with CITES and the
5.1 (Ramsar sites in the territories of specific Contracting Parties).
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way in which many of the Ramsar sites have been managed. The foremost example of this is with flyways. Flyways are the linked places of protected habitats for migratory species which fly between countries. The five bilateral agreements on the conservation of migratory birds that have evolved since the 1970s have all had the Parties promise to “endeavour” to protect the important habitats of migratory birds.139, 140 These have been supplemented by flyways organised through agreements under the Convention on Migratory Species.141 The foremost and most globally spectacular of all flyways is the East AsiaAustralasian Flyway. This flyway extends from within the Arctic Circle through East and SouthEast Asia to Australia and New Zealand and includes 50 million migratory waterbirds from over 250 different populations, including 28 globally threatened species. To date, more than 700 sites have been identified.142 This flyway has had strong international support from Japan, China, Korea, Indonesia, the Philippines, Russia, Singapore and the United States. Australia has listed 64 sites as being of international significance to migratory birds as part of their commitment to the flyway. However, despite being the final resting place for the flyway, and the home of E7, New Zealand is not formally engaged in the flyway. That is, unlike other countries whereby official authorisation and support is given to the flyway, in the case of New Zealand’s involvement, although the Firth of Thames is listed as a reserve site, a local nongovernmental organisation (the Miranda Trust) is at the forefront, not the New Zealand government.143In some regards, although New Zealand is currently underplaying its tourist potential with regards to flyways, it may be a mixed blessing as it is already failing to give this site the protection it merits. Similarly, where New Zealand does risk falling foul of the Parties to the Ramsar Convention is with its overall management of the Firth of Thames site which is unusually fragile to begin
New Zealand Journal of Environmental Law
with — or at least, the benthic ecology is very fragile — and this is the principal food source for both fish and shorebirds and main determinant to diversity and abundance of the resident and migratory species. Unfortunately, habitat loss and degradation is the “priority” issue for this site, not the management of species of tourism potential. This site is under multiple threats including, inter alia, nutrient loading, effluent management, increased marine farming, flood control, shore protection and riverbed “improvements”. The site, and especially at the southern end of the area, is potentially vulnerable to activities occurring in surrounding marine and land environments, including drainage from approximately 175,000 hectares of catchment. The secondary threats in this area directly involve the species of interest, whereby visitors and tourists are increasingly encroaching on intertidal feeding and nesting sites. Associated alien species, such as dogs and cats, are also becoming a source of concern in this area. There is also increasing aircraft activity over the site, causing direct disturbance to birds.144 The difficulties in resolving some of these concerns are added to by the fact that the area is governed by eight different pieces of legislation and at least eight different central and local government agencies.145 The final area which has an international overlap on the New Zealand practices of nature tourism is with regards to wildlife. In the first instance, under the 2004 Agreement on the Conservation of Albatrosses and Petrels, the Parties (including New Zealand) agreed to, inter alia, “avoid or minimise disturbance caused by ... tourism, and in particular by controlling the proximity of approach to breeding birds”.146 However, although the topic of tourism has been of interest to the Parties, they have not yet passed resolutions or givenadvice of best practice in this area.
The second instance where New Zealand has wildlife of international concern is with regards to cetaceans. The primary international body in this area is the International Whaling Commission (IWC). The Commission has been interested in whale watching since 1993 when the majority of the Parties to the International Convention for the Regulation of Whaling “recognise[d] whale
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watching as an expanding tourist industry which contributes significantly to the economies [of a number of countries, and endorsed ...] the contribution which whale watching makes to education and to furthering scientific knowledge”. Accordingly, the IWC formally expressed its desire “to encourage the further development of whale watching as a sustainable use of cetacean resources”.147 A year later in 1994, the Commission repeated that it was hoping to encourage the further development of whale watching as a sustainable use of cetacean resources, and that the Commission should provide advice to member and nonmember states on the regulation of whale watching and on the collection of useful data.148 Following on, some general principles were agreed by their Scientific Committee in 1996.149 The Scientific Committee has also made some recommendations to stop all whalewatching activities (such as with the critically endangered Irrawadday dolphin in the Mekong River, where less than 100 individuals were being watched by at least 20 large motor boats),150 and they are currently overseeing a largescale whalewatching experiment involving a worldwide tracking of commercial whalewatching operations.151 However, beyond these movements, there has been relatively little evolution since the guidelines were proposed in 1996. This lack of progress is unlike that in the regional organisations (to which New Zealand is not a Party) like the Agreement for the Conservation of Cetaceans in the Black Sea, Mediterranean Sea and Contiguous Atlantic Area. The Parties to this Agreement have issued and updated a series of resolutions for the sustainable management of the whalewatching industry in the Mediterranean.152 Their latest update was in 2010 and, in a clear advance on earlier recommendations, recommended that in addition to all of the traditional concerns, full impact assessments should be done before any whalewatching activities are authorised.153With regards to small cetaceans, it appears that the New Zealand man agement is broadly consistent with the international practices in this area as
(ACCOBAMS, 2004), Res 4.7, annex point 4(n).
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evidenced by the International Whaling Commission. That is, following a number of scientific studies, regulations have been strengthened to protect the species in issue. This was obvious in 1995 and 1997 (in the Bay of Islands),154 2007 (Doubtful Sound) and 2010 (in Kaikoura).155 In such instances, limits were placed on the numbers of visitors in the water, methods of approach, rest times for the cetaceans, and prohibitions were placed on interaction with juvenile cetaceans. In other instances, such as with Doubtful Sound, due to the urgency of the situation, new Dolphin Protection Zones were established in certain parts of the Sound complex and areas which extend 200 metres from the shore were created where motorised vessels were not permitted if dolphins were visible. If dolphins are not visible within this zone, entry is permitted by the most direct route at very low speeds, with attached protocols of what to do if the dolphins appear. Fundamentally, encounters with these dolphins are now left to chance and shall be on the terms of the dolphins. Even nonmotorised vessels (such as kayaks) have a strict code of compliance not to disturb or harass the animals.156 With regards to large cetaceans, following repeated reports during the 1990s that this resource was fragile and extreme caution was needed in protecting these animals from tourism, the regulations were amended in terms of, inter alia, the number of boats allowed at one time, the approach of vessels and distances.157With regards to large cetaceans, it is questionable if the New Zealand management strategy is broadly consistent with best international practices. Although the importance of managing the tourist impact of whale watching on large cetaceans is clearly recognised,158 the practice at both the micro and macro level raises a series of issues. For example, at the micro level, whilst the 1992 Regulations set an upper limit of three whalewatching vessels per cetacean, other countries set this much lower. For example, in France, Dominica and Norway the number is two and in the Dominican Republic and Puerto Rico the total number of whalewatching vessels at any point in time is one.159
(International Fund for Animal Welfare, Yarmouth Point (MA), 2004) at 2, 3, 8, 21, 22, 25,
34–36, 50, 53, 54, 57.
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This approach whereby only one vessel at a time may view a whale is now the recommended practice of the Parties to the ACCOBAMS Agreement where it was agreed in 2010 that “only one vessel or aircraft at any one time should be allowed to stay in the watching area”.160At the macro level the most obvious gap in the effective management of the whalewatching industry is the failure to enclose this most valuable resource within a protected area. Marine protected areas around New Zealand can be found as reserves, parks or marine mammal sanctuaries. Although New Zealand underperforms in this area,161 and the formation of such areas requires careful legal and policy footwork,162 it is clear that the Marine Mammals Protection Act 1978163 envisaged the creation of such areas to directly help in the conservation of marine mammals.164 From this legislation, marine mammal sanctuaries have been created around the Auckland Islands, Banks Peninsula, the Catlins Coast, Clifford and Cloudy Bay, Te Waewae Bay and the West Coast North Island sanctuary. However, the most important New Zealand location of all in terms of tourism and cetaceans, Kaikoura, is not a marine mammal sanctuary, despite the need for such an area being recognised as early as 1992, over 18 years of debate on this topic, and the goal of such a sanctuary being reiterated in the 2004 Marine Mammal Action Plan.165
The necessity for such a sanctuary has become much more heightened in recent years as fishing efforts in the Kaikoura Trench have come to raise concerns over depleting the very resources the whales in the area are drawn to. These concerns have led to private agreements with some local fishing operators to refrain from trawling within a small box known as the “hot spot” (approximately a square 30 kilometres), and would minimise trawl operations in the outer defined area (approximately a rectangle, 45 by 60 kilometres). However, the point needs to be reiterated, that to safeguard this aspect of the resource, these are not official arrangements.
165 Molloy and others, above n 67, at 158–159; Department of Conservation, Marine Mammal Action Plan for 2005–2010, above n 17, at 41.
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The other concern for why a large protected area is necessary is with regards to noise in the marine environment. Cetaceans are particularly important in this regard, using sound to navigate, find food and interact with each other. Water based noise pollution is a particular problem with cetaceans.166 In some areas, both international organisations and individual governments are aware that some aspects of this pollution, such as that generated by tourist boats, must be controlled. This is because the evidence suggests that, in some instances, less than efficient tourist boats can be heard by some whale species up to 16 kilometres away, and can mask their calls at 14 kilometres away.167 Thus, in instances like New Zealand, the study and regulation of the noise impact of tourist boats is part and parcel of the permitting considerations.168 However, in other areas, where the impacts may be even larger, the New Zealand practice is less than desirable. This is particularly obvious with seismic testing.Seismic testing is a method of exploration that uses the principles of seismology to estimate the properties of the Earth’s subsurface from reflected seismic waves. The method requires a controlled seismic source of energy. Air guns are the most renowned tool in this area, although depending on what is being explored, different tools will be utilised. By noting the time it takes for a reflection to arrive at a receiver, it is possible to estimate the depth of the feature that generated the reflection. To get accurate maps, the tools are fired at regular intervals (such as every 10–15 seconds). Seismic air guns generate lowfrequency sound pulses below 250 Hz, with the strongest energy in the range 10–120 Hz and peak energy between 30–50 Hz. Air guns also release lowamplitude highfrequency sound, and acoustic energy has been measured up to about 100 kHz. The energy of these tools has increased rapidly in recent decades.169 Part of this increase is reflected in the fact that the noise generated from some of these surveys can now be heard underwater from thousands of miles away. Seismic surveys are used for a number of purposes. First and foremost, marine seismic surveys are central to the oil and gas industry, and have contributed substantially to the discovery and definition of new hydrocarbon reservoirs. Seismic surveys are also used to gather data for academic and governmental needs such as mapping the ocean floor. These surveys are currently popular in New Zealand, as the new (and relatively
Effects of Tourism on Marine Mammals in New Zealand, above n 73, at 19–20.
169 John C Goold and Rodney FW Coates “Near Source, High Frequency AirGun Signatures” ( paper prepared for the International Whaling Commission Seismic Workshop, Saint Kitts, 24–25 May 2006) IWCSC/58/E30 <www.iwcoffice.org>.
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accurate) seismic surveys overlap with the national desire to find lucrative sources of mineral wealth increases.170Although there are still scientific uncertainties over the ways that the noise from the different types of surveys is heard and impacts upon the surrounding environment, there is evidence that this type of activity can have detrimental impacts on, inter alia, fish and marine mammals. With regards to the latter, whilst there is clearly a growing body of evidence that anthropogenic underwater noise has the ability to impact directly and detrimentally upon marine mammals, the exact impacts of seismic testing are still being conducted.171 This is especially so with the impacts on male sperm whales (of the type at Kaikoura) which are still being undertaken and debated.172 Due to such concerns, a number of countries have implemented a range of mitigation measures that have been applied, either singly or in combination, to mitigate the potential impacts of marine seismic surveys. The methods employed include geographical and/or seasonal restrictions, source reduction or optimisation, buffer zones, surveillance of buffer zones by visual, acoustic or other means, “rampup” or “softstart” techniques and reporting requirements. Methods are applied individually or in combination, often as required by operational guidelines.173 In some countries, such as the United Kingdom, seismic surveys require a permit and cannot be undertaken unless an assessment of the impacts has been first undertaken. Likewise, in Norway, seasonal restrictions on seismic surveys may be imposed in specific areas or included in licence conditions. Prior to each seismic survey, the Norwegian Institute of Marine Research must do a biological evaluation and recommendation.174 New Zealand has approached this problem through the 2006 Guidelines for Minimising Acoustic Disturbance to Marine Mammals from Seismic Survey Operations.175 However, despite the goal to minimise
(OPSAR, Biodiversity Series, Paris, 2009) at 4, 5, 24–25.
New Zealand Journal of Environmental Law
impacts in this area,176 lesser standards apply in New Zealand waters than elsewhere. That is, although a number of areas were identified as areas of special significance to “be avoided where possible” so as to avoid encountering “species of concern”, including around, inter alia, Kaikoura,177 the guidelines are not outright prohibitions, but rather, recommendations. Thus, if the need is “unavoidable” surveys may be conducted subject to certain considerations, such as trying to ascertain if whales are already in the area, and if they are, not starting work unless they are 1.5 kilometres from the operation.178 The utility of this measure with impacts that may carry hundreds, if not thousands, of miles away, should be the subject of debate. So too should be questions of why New Zealand standards do not meet international best practice, when an industry worth tens of millions of dollars may be at stake.179
3. CONCLUSION
Naturebased tourism is desired for its twin benefits of conservation and economic reward. It is a phenomenon on both the international stage and within New Zealand. Whilst this is a relatively new development internationally, within New Zealand the focus upon naturebased tourism is longstanding. Despite these new and historical relationships, in recent decades it has become apparent that poorly regulated tourism can destroy the very resources that it is predicated upon. This is apparent at both the international and domestic levels. Within New Zealand, a number of naturebased resources are showing emergent signs of reaching capacity, overcapacity or shortsighted management.
At the international level, these problems are most apparent within the World Heritage Convention, with some sites of outstanding universal value being listed as “in Danger” due to the threat of poorly regulated tourism. New Zealand has not yet crossed this threshold with its World Heritage areas. How many more visitors and activities can be squeezed into these areas before their integrity becomes a matter of international concern is a matter of debate. However, before that point is reached a number of other sites and species are a cause for concern.
The primary response to these emerging concerns has been for the adop tion of voluntary, marketrelated ecostandards in the various touristrelated
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