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Alon Tal*
A little lonesome space, where nature has her own way, where it is quiet enough to hear the patter of small paws on leaves and the murmuring of birds, can still be afforded. The gift of tranquility, wherever found, is beyond price... I believe that whenever we destroy beauty, or whenever we substitute something man-made and artificial for a natural feature of the earth, we have retarded some part of man’s spiritual growth.
Rachel Carson[1]
New Zealand is blessed with a strikingly lovely landscape and a unique ecology. [2]For example, of the 2,500 native species of conifers, flowering plants and ferns, over 80% occur nowhere else in the world.[3]To wander among the forests of New Zealand evokes a special sense of wonder. For reasons that are poorly understood,[4 ]the meteor that 65 million years ago laid waste to 70 percent of the earth’s life, separating the Cretaceous period from our modern Tertiary one, left the islands’ flora essentially untouched. Ameeting with kauri forests in New Zealand reveals landscapes and plants that supported dinosaurs. It spurs the imagination in ways that no exhibit or curators’ recreation can.
After the initial transformation of over 80% of its lands and decimation of its wildlife by Maori and Europeans, the new nation of New Zealand changed its orientation and made a substantial societal commitment to preserving its marvelous natural heritage. Under the National Parks Act, some 30% of the country’s lands have been set aside as national parks to be managed by the Department of Conservation[5] (hereinafter: DOC). These preservation efforts have been successful enough to make New Zealand a highly attractive destination for tourists worldwide that primarily seek inspiration in the picturesque parks and countryside. By law, the Department of Conservation does not charge entry fees[6]and without “gate keepers” there are no precise figures of visitation rates. But estimates by park officials suggest many millions of visitors annually. Not only is nature in New Zealand sensationally scenic, it is safe. As one nature handbook rhetorically asks: “Where else can you sit on a mossy bank or log, confident that you won’t be attacked by soldier ants, venomous scorpions and spiders, snakes, leeches or hornets?”[7]
And yet, to an increasing number of visitors, a plague of far more insidious pests has invaded the borders of New Zealand’s scenic parks. Planes and helicopters carrying tourists have raised the decibel level and lowered the existential serenity that National parks and wilderness areas offer. New Zealand’s parks were primarily designed to be accessible to hikers. With over 10,000 kilometres of trails managed by the Department of Conservation, and hundreds of campsites and huts, residents and foreign visitors were given access to remote wilderness areas, which offer a source of recreational enjoyment and spiritual inspiration. But, not all visitors are inclined or able to walk meaningful distances, and many appealing areas are not easily accessible by foot. Tourism has become a big business and is a diverse sector. An increasing number of people choose to view or reach the landscapes via the air, on helicopters and light aircraft. Providing such services has become an attractive commercial venture.
The noise and disturbance associated with these “overflights”[8]constitute a nuisance to many who visit New Zealand’s parks. Upon reaching remote locations and vistas, their contemplative solitude and sense of seclusion is spoiled by the roar of engines and the whirl of propellers. Attempts to find some respite from the trappings of mechanized civilization are sabotaged by the seemingly ubiquitous air traffic. Studies suggest that some of the creatures that make New Zealand’s parks their home may also find motorized transport a source of stress. And fishermen resent the decimation of stock in remote streams by casual visitors who fly in for a quick and easy catch. At the same time, a growing cohort of primarily international tourists enjoy the aesthetic experience, efficiency and sheer excitement of aerial access to the scenic wilderness vistas of New Zealand. It is not at all self-evident to them that the national park experience should be a tranquil or silent one. Indeed, these contrasting perceptions are not unique to New Zealand and have been characterized in other national park systems as a clash between “Preservationists and Recreationists”.[9]
The conflict of interests goes to the heart of what a strategy for “sustainable”
tourism should look like. In theory, any country’s national parks should strive to meet the broadest possible menu of individual needs. As national climbing icon, Sir Edmund Hillary writes: “Our national parks provide opportunities for all people to enjoy the pleasures of the outdoors. From a gentle afternoon stroll to a week long tramp through rugged bush and mountains.”[10]Given the tourist industry’s growing contribution to the national economy and the mounting acrimony surrounding aircraft noise, defining the limitations of air access to parks and scenic regions should be a critical policy objective for New Zealand. Yet, an operational definition for “sustainable tourism” remains elusive and the somewhat muddled and inadequate legislative position on the issue of overflights has done little to help resolve the associated controversies. This article attempts to explore the legal, technical and philosophical aspects of overflights and air access to New Zealand’s protected natural areas and recommends some small, but fundamental changes in the related legislative framework. It begins with a review of the environmental impacts and concerns about overflights in New Zealand and characterizes the scope of the present conflict. The article then describes the existing statutory and regulatory system that controls air transportation and national parks and wilderness in New Zealand. This requires a detailed deciphering of two laws: the Civil Aviation Act 1990 and the National Parks Act 1980 along with the many rules that have been promulgated and the modest litigation that has been pursued pursuant to them. The article then briefly evaluates the experience of the U.S. and Australia and their regulatory strategies for addressing the overflight controversy. The philosophical issues manifested in the policy debate are then considered. Finally, recommendations for changing the present New Zealand statutory framework for managing overflights are offered. These would alter the present “balance of power” between the government agencies involved and proscribe activities that have heretofore been allowed in the hope of offering a more sustainable and equitable response to the rise in the popularity of commercial flights into nature.
When visiting parks and wilderness areas, people not only seek to change the scenery but their acoustic reality. Nature not only offers an inspiring visual alternative but also a refreshing auditory experience. Starting in the United States in the 1970s,[11]the notion of “natural quiet” emerged as a salient objective for government conservation policy at national parks and wilderness areas around the world. While no “statutory definition” exists yet in New Zealand for the concept, a Department of Conservation official “Visitor Strategy” promulgated in
2000 offers an intelligible, non-legal definition that is free of excessive professional jargon:
An important value of department-managed areas is natural quiet. This can be defined as the natural ambient conditions or the sound of nature. Natural quiet can range from silence to a thunderstorm and includes the sounds made by animals and plants. Natural quiet is an important component of visitors’ appreciation of department- managed areas along with other qualities such as solitude, space, scenery and clear skies.[12]
Recently, a very practical U.S. National Park Service’s definition of “natural quiet” was upheld by a federal court.[13]The definition of quiet simply requires:
“no aircraft audible”. Regardless of how it is defined, in today’s mechanized world, natural quiet has become an increasingly scarce commodity. Given present technology, motorized flights are noisy and noise can travel great distances in open spaces. U.S. studies suggest that helicopters can be heard in the Grand Canyon natural environments at distances of over twenty-five kilometers.[14]Residents living near the major airport at Denver Colorado report background ambient noise levels of
20 decibels. When aircraft as far as 50 miles away pass by, the level may jump as high as 77 decibels.[15]Decibel measurements are based on a logarithmic system, with small increments representing a doubling in intensity. Hence, such acoustic shifts involve increases of many orders of magnitude.[16] Precisely how noisy aircraft and helicopters are in natural areas depends on the given topography, weather and of course the type of plane or helicopter itself. As decibel readings measure pressure, overflights, like many sources of short, punctuated noises, are extremely loud and disruptive yet may not last long enough to violate maximum decibel standards.[17 ]Over the past decade these disturbances have proliferated in New Zealand’s national parks. The increase can largely be associated with the 85% growth in tourism during the 1990s.[18]
Over two million tourists visit New Zealand annually, and this number has been steadily growing.[19]The Ministry of Tourism reports that nearly one in ten New Zealand jobs is either directly or indirectly linked to tourism.[20]To better demonstrate the contribution of tourism to the country’s balance of trade, one government analysis likened the contribution of a single international visitor to New Zealand to the worth of 1000 kg. of beef, 880 kg. of butter or 1.5 hectares of plantation forest timber.[21]If present trends continue, government estimates project an overall increase of 48% in international visitors or 972,000 arrivals over the next 7 years. And part of the modern Kiwi tourist package is scenic flights in helicopters and airplanes. To date, some 158 operators have received licenses to run an “air operation”.[22]Not all of these are commercial tourist operators, of course, and there are a few corporate and other small transport operators. According to the Ministry of Tourism’s recent survey of visitor activities, some
2% of visitors report taking “Scenic Planes” and 2% take “Scenic Heli Rides”.[23]In other words, some 20,000 international visitors engage in each of these activities. While there is probably overlap between these two cohorts, the extent is unclear. Although no formal statistics are available,[24]most helicopter operators confirm that the vast majority of their visitors (greater than 80%) are international tourists,
although this varies to some extent with location. In summation, the number of individuals who annually partake of this tourist service in New Zealand is probably between 50,000 and 100,000 individuals nation wide.
These aerial forays into natural settings are not inexpensive. An informal telephone survey suggests that the costs for helicopter and scenic air flights vary, primarily according to flight duration. The least expensive flight options are roughly 150 dollars for a half-hour flight (per person) with lengthier options costing many hundreds of dollars.
The absence of a reliable census and basic statistics for overflights in New Zealand, not to mention comprehensive empirical acoustic analysis on the subject, is a reflection of the lack of serious government attention paid to the issue. All stakeholders in the present debate agree, however, that the numbers of air bound visitors in the parks and available flight opportunities are increasing. So have the resulting environmental impacts.
Because of the high decibel level of noise emitted from aircraft, a growing literature has begun to document the effect of overflights on animals and humans. The zoological research is fairly conclusive. In Antarctica, for example, a series of researchers observed panic among penguins at distances greater than 1,000 metres from aircraft.[25]These changes were also measured by indicators of physiological stress, such as increased heart beat.[26]Three days of helicopter operations caused 8% of penguin nests to become abandoned. When air bases suspended operations, penguin populations, whose size had dropped by
50%, rebounded, with much of the improvement attributed to the absence of helicopter flights over the colony.[27]The magnitude of tourism’s effect in general on penguin populations was hotly debated by competing research teams in an exchange of letters that appeared in the prestigious journal Nature. Nonetheless, all researchers agreed that: “penguin breeding numbers in colonies fluctuate due to air craft operations”.[28]
Some bird species adapt readily to the noise of human activities and it is hard to imagine the unflappable kea population of New Zealand traumatized by helicopters. Some wildlife management experts believe that birds that live in colonies are most likely to be affected by overflights in New Zealand.[29]Given the paucity of verifiable local data about overflights’ influence on indigenous avian populations, extrapolation may be the best zoologists can presently do to assess local impacts. Hence, it is instructive to note that North American birds, comparable to local indigenous species such as eagles,[30]Canadian geese[31]or owls,[32]have been documented as suffering a variety of negative impacts from exposure to helicopters and aircraft. These disruptions include decreased prey delivery, insufficient parental care and disrupted mating displays. It is highly likely, therefore, that many New Zealand bird populations in the parks and wilderness areas of New Zealand sustain similar damage from the increased exposure to the mechanized noise of aircraft and other tourist activities.
While most mammal species present in New Zealand’s protected areas are exotic, and therefore undesirable, some are native, such as seals, dolphins, whales and bats. It is therefore still worth noting that exposure to helicopters has been thought to jeopardize the reproductive success of a variety of wildlife. Researchers observed escape response among ring seals.[33 ]And when Dall’s sheep were exposed to helicopter and fixed-wing aircraft noise, they exhibited fleeing response and rest was disrupted.[34 ]The psychological impact of these noises can only be imagined.
Humans also suffer from noise. Researchers make a distinction between the simple physical responses to hearing a noise, often characterized in decibels as an environmental impact, and the more complex associative meanings attached to hearing a noise, usually manifested in the social impacts. While the ambient levels caused by aircraft in nature are both too short in duration and too weak in intensity to cause physiological damage,[35]for many individuals they are a source of stress. Dutch researchers, for example, found that of the different modes of transport that produce noise (e.g., cars, railway, planes and helicopters) humans find noise from aircraft to be the most annoying.[ 36]
In a comprehensive 2000 review of social impacts on the “Great Walks of New Zealand,” with specific reference to noise impact issues, Department of Conservation social scientist Gordon Cessford summarized eleven separate surveys with a cumulative sample size of almost 5,000 visitors.[37 ]Respondents completed questionnaires near the end of popular multi-day walking trails as well as sea-kayaking and river canoeing trips.[38 ]Many of them were unhappy. The Milford Track, promoted by government agencies, with some justification, as the most beautiful walk in the world, offers a particularly extreme example. Some 91% of hikers there noticed the effect of aircraft and 69% were bothered by the noise.[39]These rates far exceeded the levels of awareness and annoyance in great American parks such as Yosemite and the Grand Canyon in which overflight noise has been characterized as problematic.[40] It is not clear whether the dissatisfaction is due to the higher sensitivity of visitors in New Zealand parks or the actual amplitude of the noise. Yet, in either case, the severity of the phenomenon remains unchanged. Of course there is enormous variation among individuals regarding sensitivity to noise. Within national parks and wilderness areas, a series of studies indicate that “mountaineers” or hikers on more rugged routes in New Zealand find
“technological noises” more negative than do other visitors. At the same time the noises coming from nature were more thoroughly enjoyed. Thus in one study, sightseers visiting the glacier floor were less annoyed by aircraft noise than those who had made the effort to reach the higher valley-wall viewpoints.[41]As Cessford concludes: “The sound of a snow mobile, jet, ski, motorbike or helicopter can sometimes be interpreted as a strong indicator of differences in the motivations, goals, environmental values and behaviors of different recreation participants.”[42]
For humans, it would seem that the problem is less the actual amount of noise to which they are exposed, and more the context in which they experience it. Studies suggest that as the percentage of overall awareness of overflights increases, so does the likelihood that the noise will be perceived to be a nuisance.[43]
For several years DOC has explored the idea of creating a 25% threshold level as an indicator for visitor annoyance from noise.[44]Using this criterion, of the eleven sites sampled, intervention to reduce noise is presently needed on the Milford Track on the Abel Tasman Coast, the Whanganui River, the Routeburn Track and the Abel Tasman Track.[45]This blunt tool would presumably give park managers some diagnostic tools for evaluating their situation, but offers little in the way of actually influencing the “air traffic” itself. As will be described, the flight routes and altitude of aircraft in the national parks remain largely outside the purview of DOC authority.
On September 1, 1990, the New Zealand Parliament passed the Civil Aviation Act.[46]The formal objectives of the new law involved safety and compliance with international standards for air traffic.[47]From a broader policy perspective, the reason why the government issued a comprehensive new statute and administrative system was the “deregulation” of what was considered to be a highly bureaucratic system. The new law was designed to focus government intervention on to issues of safety, while ensuring that its regulatory activities remained cost-effective.[48]
TheAct itself is copious and runs to 120 pages, addressing issues from smoking on flights to airport security. Beyond the statute, the actual particulars of New Zealand’s air transport policy for passengers are written up in a series of Civil Aviation Rules, (hereinafter: CARs). Most of the regulations were released in
1992 but they are frequently amended by the Minister of Transport. These rules divide aircraft into three categories – according to size. CAR 125 and 121 address large aircraft, and provide criteria for the licensing of commercial airlines such as Air New Zealand, Freedom Air, or Qantas. However, Rule 135, “Certification Process Guide”, stipulates the conditions for operating small aircraft — which are defined as 9 seaters or those weighing 1700 kilograms or less. The commercial operations that offer tours to New Zealand’s parks receive their certification pursuant to these somewhat labyrinthal rules.
Although an answer is provided to applicants within 90 days, receiving an
“aviation document” to operate a plane is by no means a trivial process.[49]Section
9 of the Act sets out the general expectations. From a procedural perspective, detailed paper work requires specifying the identity and qualifications of key personnel, including pilots, health and safety officers and senior management so that the Authority can assess whether they are “fit and proper persons.”[50]
Frequently, the Civil Aviation Authority will require interviews with these individuals to ascertain their competency.[51]Applicants must submit an operating manual of how they intend to run their business, and it is often returned for supplementary information if its “level of resolution” needs to be enhanced. After an initial audit and site visit, new operators are typically granted an interim certificate, for a period of 6 to 12 months, during which time the CAAauthorities can monitor the actual implementation of the plan.[52]Substantively, the review by the CAA is designed to ensure the safety of the aircraft.[53]For example, there is little room for flexibility on matters regarding the maintenance schedules of aircraft that at the very least have to meet manufacturers specifications.
Restricted Areas Under the Civil Aviation Act 1990
Once a “135 certificate” has been granted, from the perspective of New Zealand CivilAviation officials, operators are largely allowed to take passengers wherever they please. Among the changes that the Act was intended to introduce was a more “laissez affair” approach to air routing. Under the 1964 Act, and the previous aviation system, operators were often restricted to geographical regions and times in their flight routes.[54]
This is not to suggest that there are no restrictions whatever on aircraft operators. The “pilot-in-command” of commercial flights utilizes “visual flight rules” which require that a flight plan be submitted to an air traffic service unit.[55]
These need to conform to a list of “restricted areas” for flights. Accordingly, the Minister of Transport is empowered under Section 29Aof the CAA “Rules Relating to Airspace” to limit flight paths for reasons other than security. Specifically the law holds:
Without limiting the power conferred by section 28 of this Act,
(a) In the interests of safety or security within the civil aviation system; or
(b) In the interests of national security; or
(c) For any other reason in the public interest,— the Minister may make ordinary rules providing for the classification, designation, special use, prohibition, and the restriction of airspace and things affecting navigable airspace, including airspace used by aircraft used by the New Zealand Defence Force or a visiting force.[56]
It is interesting to note that the previous Civil Aviation law did not include
“the public interest” as a valid reason for limiting air space.[57]Thus, in the present context, a threshold question that arises is whether the new “public interest“ justification for regulating air space was intended to include ecological or amenity considerations. A 1997 inquiry by the Parliamentary Commissioner for the Environment report about the environmental impact of tourism in New Zealand considered the matter and was definitive in this regard:
...the public interest criterion... was included in the Bill at the select committee stage specifically to address general public interest matters such as noise. It was intended that the purpose of the Civil Aviation Act 1990, namely to promote safety, would not restrict those public interest matters for which rules could be made.[ 58]
The report went on to state that sec. 29A was specifically intended to allow the Director of Civil Aviation to protect wildlife reserves and national parks from “excessive aircraft intrusion”.[59]A subsequent report in 2000 by the Commissioner, focusing solely on noise from overflights, confirmed that the CAA gave the Minister of Transport full authority to intervene to further conservation objectives.[60]
The CAR regulations transfer these authorities to the Director for CivilAviation, including the prerogative to restrict air space in the public interest. [61]The air space designation should contain specific vertical levels and altitudes for flight levels.[62]In a reflection of the “laissez faire” philosophy of the Act, the size of restricted areas is supposed to be “as small as possible”.[63 ]In theory, any person may petition the Director of Civil Aviation for a designation to restrict airspace in the public interest. To the extent that such a process exists, it still has no formal basis in regulations.[64]
In practice, the process for designating restricted areas for air traffic proceeds as follows: When new areas are established, or there is a change to an existing area, a new and complete description of the area is prepared, specifying the date at which it becomes effective.[65]The new or amended area is then formally promulgated, with the signature of the Director of CivilAviation and published in the New Zealand Air Navigation Register. Extensive efforts are made to disseminate the information to the aviation community and pilots in particular.[66]
A review of the present list of restricted areas reveals a surprisingly small number of sites – twelve in total.[67]Two are prohibited due to the presence of an oil refinery below. One was listed to avoid conflict with jet activity and one to reduce the risk of avalanche. The remaining proscriptions are intended to protect fauna or birds. These include the Gannet Colony in Hawkes Bay, Farewell Spit in Nelson Bays, the Royal Spoonbill Colony in Moeraki and the Albatross Colony at Taiaroa Head. Two of the fauna restrictions (in Okarito and Punakaiki on the West Coast) are seasonal. It is important to emphasize that the restrictions are not flight bans at all, but rather involve height restrictions, typically allowing activity aircraft over the 2,000-foot level. Every five years the list is reviewed.[68]
Other than these restricted areas, special low-flight zones,[69 ]or cases of military exigencies, the CivilAviation’s default policy allows planes in non-congested (i.e., uninhabited) areas to fly as low as 500 feet from the ground. In urban areas, the minimum height is set at 1000 feet.[70]According to the Act, compliance with the rules grants aircraft operators immunity from legal actions for nuisance, trespass or other noise-related disturbances.[71]Damage caused as a result of objects falling from a flight is, however, actionable. The CAA rules also stipulate standards for noise from civil aircraft.[72]General noise standards exist for helicopter landing areas as well; they establish a maximum decibel level for surrounding areas.[73]
As to enforcement, technically CAR Part 91.129 provides the salient proscription for pilots, prohibiting them from operating aircraft within restricted areas without the approval of the controlling authority designated for the area. The Civil Aviation (Offences) Regulations set a $5,000 individual fine and $30,000 corporate penalty for violation of the rule. Yet the CivilAviationAuthority does not actively monitor compliance with aircraft designation, preferring to respond to complaints from aggrieved parties such as the Department of Conservation.[74]
The Role of New Zealand’s Department of Conservation and Conservation
Laws
New Zealand’s Department of Conservation (DOC) was established under the 1987 Conservation Act.[75]The Department was given responsibility for lands intended primarily for conservation purposes, as opposed to other state-owned lands with commercial potential.[76 ]The country’s national park system, of course, predated the new Department.
National parks are almost as old as European settlement in New Zealand itself. The first park was declared at Tongariro in 1887 making it only the fourth national park in the world. Beginning in 1952, a more systematic framework was established for managing national parks.[77]The present 1980 National Parks Act sets as its ambitious objective: “preserving in perpetuity as national parks, for their intrinsic worth and for the benefit, use, and enjoyment of the public, areas of New Zealand that contain scenery of such distinctive quality, ecological systems, or natural features so beautiful, unique, or scientifically important that their preservation is in the national interest.”[78]Some 7 million hectares, or one third of New Zealand’s lands, are presently designated as National Parks and managed by the Department of Conservation.[79]
It is important to emphasize that the overall “management” philosophy mandated by the Act is highly preservationist in its approach. National parks are to be protected as far as possible in their natural state.[80]Native plants and animals in the parks are to be preserved to the extent possible and exotic species “exterminated”.[81]Humans are welcome in the parks, but only after the fundamental objectives of the Act are met. This “mission statement” for DOC management of New Zealand’s National Parks appears in section 4 of the National Parks Act:
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 native plants and animals or for the welfare in general of the parks, the public shall have freedom of entry and access to the parks, so that they may receive in full measure inspiration, enjoyment, recreation, and other benefits that may be derived from mountains, forests, sounds, seacoasts, lakes, rivers, and other natural features.
The law also authorizes ecologically sensitive “specially protected areas” in parks, where entry is prohibited without a permit from the Minister of Conservation,[82]as well as much larger wilderness areas.[83]These authorities are parallel to powers given the Minister of Conservation under the Reserves and Conservation Act to establish wilderness areas.[84]The indigenous natural resources are to be especially preserved in wilderness areas, with no buildings, animals, roads or vehicles of any description allowed unless deemed necessary for scientific study or preservation activities.[85]Important to the present study are the provisions of section 14(2)(d) of the National Parks Act that specify:
“No animals, vehicles, or motorised vessels (including hovercraft and jet boats) shall be allowed to be taken into or used in the area and no helicopter or other motorised aircraft shall land or take off or hover for the purpose of embarking or disembarking passengers or goods in a wilderness area.”
In a country with as diverse a landscape as New Zealand, national parks have vastly different characters and characteristics and the National Parks Act stipulates that actual operations be driven by park-specific “management plans”.[86]These are prepared by the DOC staff, and approved by the Conservation Authority[87]after public notice and comment and subsequent to considering the recommendations of the Park Conservation Board and the Minister of Conservation.[88] Management Plans must be reviewed every ten years.[89]
NotwithstandingDOC’sgenerallyprotectivemandate,NewZealand’sNational Parks are not devoid of commercial activities. The National Parks Act allows for the establishment of “recreational and public amenities and related services appropriate for the public use and enjoyment of the park” and the Conservation Act also has an extensive section dedicated to concessions, which offers direction about application procedures and expectations from concessionaires.[90]In general, leases, licenses, permits or easements within the parks can be granted by the Minister for a “reasonable charge” as long as the contracting activities do not permanently affect the rights of the public in respect of the park and are not inconsistent with the overall mission statement of the Act as stated in section
4.[91]In considering concessions the Minister must, inter alia, consider a variety of factors including “environmental impacts”[92]and can decline applications if “there are no adequate methods or no reasonable methods for avoiding, remedying or mitigating the adverse effects of the activity, structure, or facility”.[93]
These concessions allow the National Parks of New Zealand to enjoy a degree of financial independence for a government agency. Section 57 of the National Parks Act directs all revenues generated as rents, penalties, fees, fines, royalties or donations to be retained by the Minister to run, improve and develop the national park system.[94]
It is important, therefore, to mention that concessions to establish aerodromes and land aircraft inside national park boundaries do generate profits for DOC and flight concessions are specifically mentioned in section 17ZF of the Conservation Act.[95]The potential “conflict of interest” that park concessions create is the subject of some discussion in the wildlife management literature.[96]While the total amount of revenues from landings is growing, flight concessions are probably not as “lucrative” as some conservation advocates imagine. In 2000,
$227,000 dollars were collected, in 2001 — $241,000, in 2002 — $749,000 and in
2003 — $610,000.[97]It is important to remember that while funds produced by concessions go into DOC’s general coffers, they are not returned to the specific park that generated the money. Given the overall DOC budget of 250 million dollars, with over 8 million coming from other concessions,[98]it is difficult to imagine that the profitability of concessions from commercial flight operators influences DOC landing policies substantially.
The Resource Management Act, the basic statute regulating the general use of air, land and water in New Zealand, is silent with regards to noise emissions from individual aircraft in general, much less the issue of noise from overflights in National Parks. The Act specifically limits its regulatory scope to controlling noise from airports.[99]Like many countries,[100]ambient noise from aircraft activity, is not subject to general noise prohibitions. A ruling by the environmental court in 2000 confirmed the existence of a statutory lacunae in this context when Judge Jackson went as far as urging Parliamentary intervention: “The absence from the Resource Management Act of such a power to control noise from tourism flights is an issue that, in our view, deserves legislative attention.”[101]
In an earlier decision, Glentanner Park (Mount Cook) Ltd. v Mackenzie District Council the Planning Tribunal left the door open for intervention into overflights via the Resource Management Act, but only within the context of safety concerns.[102]In this case a group of helicopter companies challenged a resource consent granted to Glentanner Park, a rival helicopter company, which sought to establish a heliport on the western bank of Lake Pukaki near the Mount Cook National Park area. While the heliport presumably would have allowed the plaintiff to expand its operations, the District Council and the rival companies argued that the additional landings would constitute a safety hazard. Judge Treadwell held that aircraft safety was indeed a matter for the Director of Civil Aviation to determine, but that the Environment Court maintained competence to consider whether flights posed a risk and whether any particular accident, even if improbable, would have environmental consequences which warrant refusal of a resource consent.
The tribunal ruled that:
Essentially we find that the determination made under the Civil Aviation Act relates to the aerodrome itself and the structures and people within the confines of the aerodrome leaving matters of wider public importance for determination by the Resource Management Act consent authorities.[103]
Unhappy with the decision, the Director of the Civil Aviation Authority sought judicial review from the High Court in Wellington.[104]Yet Ellis J. was disinclined to alter the earlier decision. Seeking an interpretation that would allow two ostensibly incompatible statutes to avoid conflict, the court held that District Councils in practice only had authority to overrule the Director of Civil Aviation by increasing the stringency of safety standards under s. 104(1)(a) of the Resource Management Act.[105 ]Air accidents were among those “low probability
/ high impact” events that must be considered by a Planning Tribunal or District
Council.
Overflight Policy at the Department of Conservation Since its inception, the Department of Conservation has made dutiful attempts to address the issue of overflights within its narrow statutory constraints. DOC’s initial position was promulgated twenty years ago in the 1983 “General Policy for National Parks” but technically remains in force. The Policy includes a brief chapter on Aircraft and Airspace that states:
Aircraft can provide a means of access to and enjoyment of parks with minimal physical impact compared with roading and some other methods of access. However, while scenic flights can be a valuable way of enjoying the parks, it is also important that the enjoyment of those who seek quietness in the parks, particularly in remote areas, is not unduly impaired.[106]
In trying to balance these two values, the DOC policy goes on to acknowledge that there may be a need to “limit the number and location of land places” with special sensitivity given to specially protected and wilderness areas. Yet in practice, the best it can do is call for “Liaison with the Civil Aviation Division of the Ministry of Transport and authorized users to achieve appropriate controls over national parks, both by regulation and by agreements”.[107]The policy calls for management plans to identify landing sites on land and water where firmer controls or regulations should be applied to aircraft activity. Finally, the policy called for endeavour to increase the minimum flight altitudes enforced over these areas. [108]
In 2000, the Parliamentary Commissioner for the Environment released a report entitled: Management of Noise from Aircraft Overflying Sensitive Environment. The Commissioner summarized DOC’s policies on overflights as consensual in nature. Rather than approach the CAAfor formal air bans and tougher controls, Department officials have pursued a policy of working with the commercial air tourist industry. This involves consultation with local aviation user groups to establish “fly friendly activities in conservation areas.”[109]
By the time the Commissioner’s report was issued, however, many DOC officials appear to have reached the conclusion that the traditional conciliatory policy was not working. The DOC Visitor Strategy prepared for 2000 warns:
“The level of concern at the threat to natural quiet from the intrusive noise of aeroplanes, helicopters, off-road vehicles and other motorised equipment has become acute in some popular areas. For example, the department receives many complaints from visitors (and staff) about aircraft noise at Mt Cook, Franz Josef and Milford Sound. The issue for the department is how to protect the value of natural quiet from intrusive noise.”[110]
Yet relegated to the role of “supporting actor,” at best, in the aviation field, the Department of Conservation’s toolbox lacks the “sticks” and “carrots” to truly fix the problem. Nonetheless, management plans began to reflect a less flexible attitude towards landing rights and there was an attempt to prioritize better which areas should be, if not “overflight-free,” at least free of landings.
The Otago Conservation Management Strategy, for example, published in
August 1998 devotes considerable attention to “Aircraft Land Objectives”.[111]
Here, a group of “catchments” are identified where aircraft landings were deemed inappropriate other than for DOC management and Search and Rescue purposes. The plan either bans landings at a list of twelve sites or limits aircraft access to
“one off landings”.[112]A new proposed management plan for Fiordland adopts a similar tack.[113]
Environmental advocacy groups, in particular The Royal Forest and Bird Protection Society, have also become active participants in the concessions and resource consent application process for aircraft landings.[114 ]Procedural and substantive objections are brought to bear, which in some cases may make it easier for the DOC officials to reject landing requests that they believe jeopardize the “natural quiet” in the parks.
The level of vigilance displayed by the Department on the issue of landing sites reached a new zenith in 2000 with the filing of Minister Of Conservation and Royal Forest and Bird Protection Society Inc v. Southland Regional Council.[115]At issue was the Southland Regional Council’s Proposed Coastal Management Plan that contains particularly loose specifications regarding flight landings in areas under its jurisdiction that lie outside the Fiordland park boundaries. Initially, the Council’s proposed plan was more restrictive, defining flight landings adjacent to most of Fiordland’s Coast as “discretionary activities” under the Resource Management Act.[116]After reviewing comments from the disgruntled flight operators, however, even this medium level of control was downgraded.[117]
From a practical perspective, the Council’s decision meant that the
particularly noisy float planes, as well as helicopters,
could land essentially
wherever they pleased in areas adjacent to the park’s wilderness areas,
beyond the “mean high
water mark”.[118]After a few
years of fruitless deliberations,[119]DOC and citizen group
Royal Forest and Bird, New Zealand were unsuccessful at changing the
Council’s position and filed a joint action at the Environmental
Court, which is presently being heard.[120]A decision is
expected some time in 2004.
Regardless of the ultimate outcome of the hearings, for most affected areas landing restrictions are not a panacea. DOC officials acknowledge that the freedom of movement that air operators enjoy once they take off undermines the effectiveness of landing limitations. Among the available flight packages, tourists can select up to five-hour excursions that make almost every corner of even large parks like Fiordland vulnerable to overflight noise. Descriptions of acoustic conditions in DOC’s own management plans in sensitive national park areas raises questions about the efficacy of leveraging flight routes and voluntary self-restraint by operators through the negotiation of more generous landing rights.
The case of Fiordland National Park is instructive. With over 1.2 million hectares, Fiordland is New Zealand’s most sizable National Park and one of the largest in the world. In its Management Plan, the problem of natural quiet and disturbance from aircraft is openly acknowledged. In defining its objectives, the Management Plan states that a key attribute of the Fiordland wilderness experience should be the providing of “solitude, peace and natural quiet”.[121]
Yet after acknowledging that in both wilderness areas of the Park noise from aircraft substantially diminishes visitors’ experience,[122 ]the Plan somewhat feebly recommends the same measures that created the present situation. The landing limitations, established according to catchment areas, are relatively lenient, and DOC is left “working with aircraft operators to ensure flight paths do not diminish these values”.[123]
In a recent letter about “Air Tourism and Air Access to Conservation Lands”
to Sandra Lee, then Minister of Conservation, advocacy group Forest and Bird
President Dr. Gerry McSweeney was highly critical of the prevailing situation in Fiordland.
Tekapo based alpine recreationist and guide Gottlieb Braun-Elwert said that in 1976 when walking the Milford Track he found an entry in the hut book of Dumpling Hut which said in the comments column: “Please install an anti-aircraft gun on McKinnon Pass”. Gottlieb says, “Twenty-five years later, I am frustrated and angered by the unbelievable amount of noise pollution in some of the world’s most precious places.” Forest and Bird shares Gottlieb’s frustration.[124]
From the perspective of compliance, results of DOC’s consensual approach regarding flight routes are, at the very least, imperfect. The Parliamentary Commissioner’s Report included examples of chronic violations of voluntary aircraft restrictions. Flights both ignored bans on entry into sensitive areas and showed disregard for height restrictions.[125]In informal discussions with the author, helicopter operators boasted that they could bring visitors 500 feet from all parts of the Milford area, voluntary agreements notwithstanding. Lacking the force of law, when violations of these agreements take place, there is little that can be done in the way of sanctions. While numerous DOC officials have acknowledged that aviation prescriptions are difficult to enforce and compliance may be inadequate, only a hand-full of prosecutions have been filed in the Otago, Southland and West Coast regions against aircraft operators for flight violations during the past decade.[126]The great difficulty in catching violators due to the remote locations of activities, coupled with the tendency to let “warning letters” suffice suggest that present efforts are hardly sufficient to create a meaningful deterrence. As to violation of existing height restrictions, there are no known prosecutions. Yet in perhaps an extreme case of institutional cognitive dissonance, in its presentation to the Parliamentary Commissioner for the Environment, DOC actually called “voluntary” agreements more effective than statutory regulations.[127]
In his study of visitor response to aircraft noise, DOC scientist Cessford suggests a variety of noise management strategies. Only about half of them are relevant to noise from overflights. These include voluntary agreements, leveraging flight paths and timing through concession agreements, education/ advocacy as well as designing airstrips, and related facilities to minimize noise pollution.[128]None of these can guarantee results and indeed given present trends, it is likely that even if they are all implemented successfully, the sheer increase in traffic will continue to exacerbate ambient conditions. It is sad to see DOC officials relegated to recommending what they euphemistically call: “improving visitor expectations”, or more precisely — lowering visitor expectations about the quality and serenity of their “outdoor” experience in New Zealand. While it is easy to be critical of the Department’s policies, it is important to remember that other countries are not doing any better.
The Grand Canyon Experience
The first country to embrace the overflight issue and enact specific legislation on the subject was the United States. This in no way implies that the American approach is worthy of emulation. Most conservation advocates would argue to the contrary. Much of the activity initially focused on the specific circumstances of the Grand Canyon, National Park. Located in northern Arizona, this natural wonder was among the firstAmerican national parks (1919) and World Heritage Sites (1979).[129]
The many miles of wild Colorado River and the astonishingly spectacular erosion make the canyon a magnet for commercial air tourism operators. By the 1970s, the omnipresent noise started to become unbearable for hikers and produced a public outcry and steady succession of legislative activity and litigation. At the very least, the resulting policy debates and legislation have etymological significance, launching the new ambient environmental concept for conservation management: natural quiet. In 1975 the U.S. Congress passed the Grand Canyon National Park Enlargement Act. The Act defined “natural quiet” as a “resource of value” and required the National Park Service to determine whether aircraft overflights were causing a “significant adverse effect to natural quiet and experience of the park”.[130]Twelve years later the National Parks Overflights Act required “substantial restoration of natural quiet at Grand Canyon National Park”.[131]This in turn triggered the promulgation of regulations by the Federal Aviation Administration (hereinafter: FAA) that established fixed routes and altitude for air tours as well as “flight-free zones”.[132]
Senator John McCain, the U.S. Senator from Arizona, by then had become the leading political figure associated with laws to reduce the noise from tourist based air activity in and around the canyon. In an essay supporting the 1997 legislative proposal he declared: “Natural quiet is precisely what most Americans want to experience when they visit these treasured places. One of the biggest threats to natural quiet comes from the buzz of air tours or overflights.”[133]
In 1995 the National Park Service reported to Congress that meeting the statutory standard in practice meant that substantial restoration of natural quiet requires 50% or more of the park to have no aircraft audible for 75% - 100% of the day. (Looking at the empty half of the glass, environmentalists noted that the Service essentially sacrificed half of the Canyon to unlimited noise for the foreseeable future.[134]) Even so, it was only ploddingly that the Federal Aviation Administration moved to formulate a series of regulations to that end. These required reporting by aircraft, changed air space and routes for air tours,[135]as well as a ceiling on the number of aircraft authorized for tours around the park. Curfews were also set for air tours on the eastern side of the canyon.[136]
But the route modifications and cap on aircraft only laboriously and partially moved forward due to internal government disagreements. Opponents of
“overflight restrictions” during this period became extremely active, citing surveys that claimed that only 8 out of 1,000,000 visitors to the Grand Canyon National park actually complained about the aircraft noise.[137]A Grand Canyon Air Tour Coalition composed of flight operators filed suit, arguing that the FAA misunderstood the statute, which was never intended to eliminate noise, but only increase the enjoyment of people on the ground.[138]The court, however, supported the Agency’s interpretation, and held that the regulation’s restoration of quiet was in fact intended to enhance visitor experience. In April 2000 a new set of FAA “Final Rules” was issued,[139]but implementation again stalled due to litigation. The controversy came to a head in the recent Federal court decision: United States Air Tour Association. v. The Federal Aviation Administration.[140] The U.S. Air Tour Association, a consortium of commercial air tour operators, challenged the FAA rules before the U.S. Court of Appeals. The petition was based largely on procedural arguments. An environmental coalition, headed by the Grand Canyon Trust intervened and called for even more stringent regulations. The environmentalists argued that the FAA should have set the natural quiet regulations for “any day” in the park and not on the basis of an “average annual day.” Essentially this means that “peak day” visitors, during the crowded summer months would enjoy the same level of protection from aerial noise as those visiting the canyon during the off season. The Court of Appeals rendered its decision on August 16, 2002, and rejected the tour operators’ position. With regard to the petition of the environmentalists, the court ruled that the use of an annual average day for measuring “substantial restoration of the natural quiet” was indeed inconsistent with the legislative directive and remanded the issue to the FAAfor further consideration. The court also ruled that the FAA had to consider “non-tour aircraft in its acoustic model for air noise” with the exclusion in the regulations disqualified as arbitrary and capricious.[141]
American conservation activists express frustration that more than fifteen years after the 1987 overflight law set a goal of restoring “natural quiet” to the Grand Canyon, its objective remains a Congressional fantasy. Overflights may be better monitored around the canyon, but the 50% “natural quiet” goal remains unimaginable in the face of the 90,000 permissible air tours a year. “Non-tour” aircraft audibility is frequently just as great.[142]Explanations for the failure point to an ongoing power struggle between the U.S. Federal Aviation Administration and the U.S. National Park Service. Enjoying sole authority to regulate air traffic, the FAA remains reluctant to give any ground to the Park Service in defining the ambient standards and measurement methods for aircraft noise within its own parks.[143]
The U.S. National Parks and Air Tour Management Act The culmination of McCain’s legislative efforts was the National Parks and Air Tour Management Act of 2000[144]that sought to apply the lessons of the Grand Canyon experience to the entire American National Park system. The Act can be found now as Title VIII of the National Parks Act. Unlike the previous proposals, the law purports to establish a comprehensive framework for the entireAmerican national park system. It is important to note that the law was tantamount to a “shotgun wedding” between the two incompatible federal agencies: the National Park Services and the Federal Aviation Authority. The law ostensibly forces their respective Director and Administrator to reach a common strategy on “overflight” policies.[145]
From a bureaucratic perspective, the Act created two new frameworks to address the issue of overflights in national parks. Firstly, the Act requires any person who conducts a commercial air route operation over a unit of the National Park System or in any area within 1/2 mile outside a unit of the National Park system to apply to the FAA for permission to continue these activities.[146]
Any such “Air Tour” flights must, however, be based on a management plan. Hence, requests for scenic tour flights over a national park triggers the second administrative framework: the preparation of Air Tour Management Plans for each unit of the National Park system (or tribal lands) that do not already have such a plan.
The plans’ objectives are: “to provide acceptable and effective measures to mitigate or prevent the significant adverse impacts of commercial air tour operations on natural and cultural resources, visitor experiences, and tribal lands”.[147]Their preparation must include the usual public “notice and comment” process and involve at least one public meeting with interested parties to present the proposal.[148]At the national level, an advisory group was established to advise the government on overflight policies, containing representatives of the commercial tourist air flight industry, environmentalists, representatives of Indian tribes, etc.[149]
This law explicitly recognises that there will be cases where these plans will need to exclude air flights entirely.[150]Indeed, the Act itself expressly prohibits commercial air tour operations over the Rocky Mountain National Park, irrespective of altitude. When permission is granted, it must conform to a list of conditions set forward in the management plan. These conditions include: the “specific route, maximum or minimum altitudes, time-of-day restrictions, restrictions for particular events, maximum number of flights per unit of time, intrusions on privacy on tribal lands, and mitigation of noise, visual, or other impacts”.[151 ]The law also provides incentives for helicopters or fixed wing aircraft that employ “quiet aircraft technology”, allowing them to remain outside the
“caps” set for conventional flights in the Grand Canyon.[152]
Regulations promulgated by the Federal Aviation Administration were published on October 25, 2002 to flesh out technical details lacking in the law.[153]
Chief among these was the actual definition of “commercial air tour operations” which is based on the actual altitude of flights (craft that fly under 5,000 feet above ground level).[154]
It is important to complete this brief sketch of the U.S. legal experience by considering the highly restrictive policies in effect for flights into wilderness areas. When enacted, the U.S. Wilderness Act was probably the greatest legislative achievement of preservationists to date.[155 ]The Act focuses on landings and authorizes land managers to determine whether aircraft can continue at all in these areas. Only three of the wilderness areas outside of Alaska allow any access at all by flights, although wilderness advocates argue that the leniency here has been much abused.[156]
Besides detailed reports to Congress, pages of regulations and plenty of court battles, the first and most comprehensive legislative foray into the realm of overflights has produced only minimal progress. Arguments blaming statutory flaws are compelling. In retrospect, U.S. law grants its National Park Service only a modest role in crafting park “overflight” regulations and no formal role in controlling air space above American parks. It falls short of designating the Service as the expert agency with full authority to determine the impacts of air tour noise (and other impacts) on park resources and visitors, and to intervene as needed. Relations between the U.S. National Park Service and the FAA have never been cozy, and the turf wars were inevitable. A former senior National Park Service official recalls meetings during the 1990s when aviation representatives openly stated that the FAA saw its mission as promoting the
“commerce and safety of the airways” and “did not want the airspace map of America pockmarked with restricted airspace over national parks”.[157]
Conservation activists also blame the overflight law’s failure on a cultural divide between the FAA— an agency used to measuring noise and determining impacts of aircraft in urban communities — and national park officials, whose frame of reference is sparsely populated open spaces. Conventional aviation standards are not considered strong enough for protecting natural quiet in parks, and aviation officials tend to delay and drag their feet on implementation of more stringent acoustic criteria.[158]
The current administration of President George Bush has “quietly” resolved the inter-agency conflict by not budgeting adequate personnel at the National Park Service to prepare Air Tour Management Plans for its parks. This has the effect of leaving the Federal Aviation Authority as the sole regulatory actor to draft them.[159]The FAA’s agreement to grandfather “interim operators’” present flight volume levels reflects their legitimate, but non-environmental perspective and does not bode well for the effectiveness of future Air Tour Management Plans. As one long-time overflight advocate laments, more than three years since the Act was signed, not a single Air Tour Management Plan has been initiated, yet operators have applied to fly over more than 100 parks. [160]
Such a position seems to fly in the face of the statutory intent, which was to authorize the U.S. National Park Service to determine acceptable levels of noise on the ground (or indeed to decide whether any overflights should be tolerated at all) and then have the FAApromulgate and enforce these standards accordingly. The U.S. experience offers a warning about the perils of an imprecise statutory division of labour given inevitable bureaucratic rivalries and the ability of well- meaning bureaucracies to scuttle important conservation legislation.
Australia The legal regulation of overflights in Australia, like much of the world, can be characterized as still in the nascent stages of development. Air traffic in national parks certainly bothers many Australians, and its impact on humans[161]as well as wildlife[162]has become the subject of study. Only during the past few years have there been calls for a meaningful regulatory response. Advocacy groups have just recently begun to mobilize against expanded helicopter access to parks.[163]
If Australia does tackle overflights, wildlife protection will undoubtedly drive the process. The negative response of whales to overflights, for example, has been measured for some time.[164]Administrative “precursors to regulations” under the Whale Protection Act 1980 have been released that call for an avoidance of helicopters altogether and a distance of 1000 meters between helicopters and the animals, with an absolute prohibition on flying directly above or hovering over the whales.[165]
Concrete proposals for legislative action in Australia are beginning to coalesce. The National Parks Association of New South Wales, a non-governmental advocacy group, has issued a “shadow policy” that is stringent by any standard. The Association’s proposal calls for low flying of aircraft, including peacetime military operations, to be banned from parks except for emergency situations and for scientific purposes. Highflying aircraft should be found alternative routes whenever possible. And of course landings in national parks are to be banned altogether, except for emergency or management related circumstances.[166]
Whether any of these ideas will eventually find expression in Commonwealth or State law remains to be seen.
V. Ethical Aspects of Overflight Restrictions
Defining an appropriate policy for overflights in conservation areas is ultimately a function of ideology and personal perspective.[167 ]At the two polar extremes of the issue are groups that typically are referred to as ”preservationists” and “recreationists.” They have been characterized accordingly:
Preservationists see the national parks as unique windows. Through these windows, the preservationists claim, we are able to see our past, our present and our future... They believe the windows contain among other things, much needed wildlife habitat, the biological resources to potentially cure disease and the peace and serenity we often need to escape our everyday anxieties. They believe therefore, that the national parks should remain pristine. They also believe that limitations on the activities permitted in the parks are necessary in order to accomplish this.
Recreationists on the other hand, see the national parks as areas that should be open for everyone to use as they see fit. The recreationists believe that the forms of recreation in which people choose to engage are irrelevant. They resent the preservationists’ ideals, often referring to the preservationists as elitists.[168]
This philosophical disagreement has been played out many times in legal conflicts over a range of activities where preservation values were pitted against road paving, jet boats,[169] ski resorts,[170] speedboats[171] and snowmobiles.[172]
In most controversies, the positions taken by the adversaries have as much to do with how they enjoy spending their time (or earn their living) as to any deep philosophical convictions. Yet, over the years, advocates for both sides have articulated a broader ideology for their respective positions. American environmental legal sage, professor Joseph Sax assumed the mantle of preservationist advocate in his short, but trenchant 1980 book Mountains Without Handrails.[173]Sax argues that national parks should be left so that nature can fully engage visitors to exercise their contemplative faculties:
(The preservationist) only urges recognition that the parks have a distinct function to perform that is separate from the service of conventional tourism and they should be managed explicitly to present that function to the public as their principal goal. Reduced to essentials, the preservationist claim is simply that motors don’t belong in this remote and wild place; they betray the idea of man immersed in nature and bring industrialization to a place whose meaning inhere in its isolation from and contrast to, life in society...[174]The ethical dilemma is not just between two competing ‘activities’ but two competing sets of values. According to this perspective, wilderness and preservation symbolize independence, self-reliance and self restraint.[175]
In New Zealand, the Royal Forest and Bird Protection Society offers the most authentic expression of a preservationist perspective in the context of overflights. The Society’s field officer in Christchurch, Eugenie Sage, frames the issue in the broader context of social injustice, economic egalitarianism and, of course, the virtues of hiking: “Forest and Bird objects to the self-centred demands (not needs) of a wealthy minority who can afford helicopter access, compromising natural quiet, disturbing wildlife and compromising the recreational experience of a much larger group of walkers, trampers and other users... There is no statutory basis that a wealthy elite should be able to access all conservation land, regardless of their personal limitations (such as laziness, age, heath or lack of fitness or time).”[176]
Many preservationists are less harsh in their criticism and do not characterize the conflict as merely one between “frivolous, thrill seeking, affluent loafers” and
“ingenuous, nature lovers”. To them, scenic air flights are fun and a perfectly good form of entertainment. It is simply a question of finding the right place and time.[177]
Recreationists bring many objective arguments to the defense of scenic flights and air access to parks. The first, of course, is environmental. The physical contact of hikers and visitors on the surface causes more damage to parks than do tourists in the skies. As one American commentator writes: “At a time when our national park facilities are strained by overcrowding, overuse, and under funding, scenic air tours can provide a solution. Air tours relieve traffic congestion, do not contribute to erosion of the trails, and help elderly and handicapped people experience the beauty of our national parks.”[178]
The access issue is an important one and leads to a major component of the pro-overflight position. For many population segments, in particular the elderly, the very young and the disabled, walking into large areas of the national parks is simply not an option. To them, bans on flights is pure and simple a violation of their human right to experience nature. The preservationist tendency to caricaturize all flight passengers as indolent or disrespectful of the parks’ integrity lacks an empirical base. It is also tactically unwise. The perceived insensitivity to the needs of the physically less fortunate has made “elitism” a major slogan for the recreationist camp, turning the preservationist allegations of “overflight elitism” on its head. When a preservationist view, disparaging recreationist, air-bound tourists was espoused by a U.S. National Park Service representative in formal Congressional hearings, Arizona legislator, John Shadegg became incensed:
This underlying philosophy toward access to the Grand Canyon is incredibly unfair and simply wrong. Many people who, by reason of handicap or age, cannot possibly “walk long distances” nonetheless deeply respect the Park. I would point to the letters in the record from various handicapped individuals, which make this point in a far more compelling fashion than I ever could. The Park does not belong only to those who are physically fit enough and financially able to take the necessary time off of work to “walk long distances”. The bias in this statement that the disabled, the young, the old and those who cannot afford the time to hike the Canyon therefore categorically do not respect it, is outrageous.[179]
In making their “elitist” case against preservationists, recreationists are often disdainful of the rival’s extreme “sensitivities” and their inflated demands for an aesthetic natural experience. While it may make for good rhetoric politically, the position is ultimately disingenuous. Aesthetics, in many ways, is at the heart of the human impulse to seek nature.[180]
Environmental ethicists make fine distinctions between the
“aesthetic character” and the “aesthetic integrity”
that
should lie at the heart of conservation policies.[181]The
aesthetic character of a place is not just linked to visual factors, but
apprehended by perceptions of all the senses, including
smell and hearing.
Aesthetic integrity refers to the unity, wholeness and harmony of a natural
place. Maintaining a park’s
integrity means being true to its unique
qualities and character.[182]It is highly unlikely that even the
most avid aviation promoter would argue that the noise of planes enhances either
the aesthetic
character or aesthetic integrity of nature for creatures on the
ground — human or otherwise. Indeed, for those who value natural
quiet, it is simply destructive.
Clearly not all who fly over national parks air are “lazy” and “disrespectful”
(although neither are they all virtuous and physically challenged). And not all preservationists are dismissive of the predicament of the elderly and the disabled. Such inflammatory rhetoric sabotages any serious attempt to consider the conflicting positions about elitism. One way to view the issue is to return to the broader prism of minority rights. If, indeed, 2% of international tourists to New Zealand are flying helicopters into and over the parks, then this constitutes a substantial constituency. At the same time, it also means that 98% of the visitors from abroad, and many more New Zealand citizens, must suffer an acoustic price for the enjoyment of a relatively small fraction of park visitors. In any theory of justice the rights of minorities are protected. However, there is nothing undemocratic about restraints on their freedoms when they directly interfere with the rights of others. George Bernard’s Shaw’s adage “Your rights end where my nose begins” may be a good common sense ground rule to resolve the conflict. For the meeting between preservationists and recreationists, ultimately, is not a symmetrical interaction. American experts describe a dynamic where
“preservationist” visitors tend to be displaced by “modern” park visitors and their more commercial recreational agenda, citing the phenomenon as “invasion and succession”. [183]Coming from crowded, urban environments, the noisy minority may hardly even feel the racket that mechanized recreation creates and often do not report a drop in satisfaction when queried about their natural experience. Visitors seeking natural quiet, on the other hand, have no recourse and are simply forced to suffer or find alternative venues. If this dynamic were cast in political terms, it would be called “tyranny”.
The issue becomes somewhat more involved philosophically, however, if utilitarian criteria are applied. If a reasonable decision rule for public policy is
“the greatest happiness for the greatest number”[184 ]then air traffic in national parks needs to be limited. Yet if the objective is to seek the greatest “average happiness” and intensity of feeling is considered in the aggregate accounting of utility, the outcome may be more equivocal. Certainly the enormous satisfaction and indeed sheer euphoria that handicapped or elderly people, who love nature, can derive from a scenic flight may stack up favourably against the temporary annoyance of a few dispersed hikers. At the same time, after preservationist trampers make an enormous effort to reach a secluded and silent vista, their
“happiness” might rank highest of all. Given the insurmountable methodological conundrums of evaluating visitors’ true feelings, and its essence as a public policy issue, society’s response to overflights would ultimately need to be resolved by rule utilitarianism.[185]
Parliament must make a judgment based on the likely consequences of the rule, as it would be uniformly implemented by the general public in the future. In this context, the “Tragedy of the Commons” offers the most relevant model for predicting the outcome of legislative inaction or intervention. Ecologist and economist Garret Hardin’s 1968 essay in Science Magazine, even after thirty-five years, remains the most commonly cited intellectual paradigm behind government involvement in conservation.[186 ]Hardin essentially described the ineluctable destruction of common resources due to the cumulative impact of individual efforts to further human self-interest. While Hardin’s basic model involved shared pasturelands that collapse from overgrazing, many other environmental resources, including “natural quiet” have the characteristics of a “Commons”. As individual flight operators and tourists pursue their own invasive, recreational adventures, they deprive society of an invaluable asset. Hardin’s conclusion is that without regulation, the commons are doomed. Given the anticipated increase in flight operations over New Zealand’s national parks,[187]without meaningful legislative reform, so is natural quiet.
Conservation Areas in New Zealand
When Parliament enacted the National Parks Act, the Department of
Conservation was given the responsibility to ensure that the public
“receive in full measure the inspiration, enjoyment, recreation, and other benefits that may be derived from mountains, forests, sounds, seacoasts, lakes, rivers, and other natural features”.[188]Deprived of any authority to regulate the air space above the lands it manages, DOC, quite simply, cannot do its job. The time has come to change this.
When the Parliamentary Commissioner considered the overflight problem in 2000, his report acknowledged that air traffic has the potential to “adversely affect amenity values in National parks and other areas that are highly valued for their natural character and tranquility”.[189 ]Nevertheless the conclusions fell short of recommending serious statutory reform. The Commission was concerned that amending the Resource Management Act to allow territorial authorities to control noise from overflying aircraft might undermine the Civil Aviation Authority’s ability to ensure the safety of aircraft operations. Thus, it suggested that section 29A of the Civil Aviation Act remain the basis for controlling overflights in conservation areas and that the Authority consult with the Ministry for the Environment and other conservation groups in using this authority more vigorously. Four years later it would seem that while the Commissioner’s logic was sound, his recommendation was naive. The Civil Aviation Authority, with its justifiable bias for safety, cannot be left as the sole arbiter of allocated air space in New Zealand. Parliament needs to upgrade the Department of Conservation’s role in overflight policy-making, allowing it to truly protect the full range of recreational experiences, without sabotaging the Civil Aviation Authority’s responsibility for overseeing safety considerations. Both safety concerns and the need to provide air operators with a single clear signal preclude the creation of a parallel regulatory system for airways over national parks. From an administrative perspective, however, expanding DOC involvement need not change the Civil Aviation officials’ lead role as gatekeeper to the skies. The statutory infrastructure and regulatory framework to restrict air space is already in place and should not be supplanted. Rather section 29A of the CAA should be amended to empower the Minister of Conservation with the authority to recommend to the Director of Civil Aviation the coordinates and conditions of air space that she feels must be restricted in the public interest. The amendment should stipulate that such recommendations are to be automatically adopted and published as “restricted areas” in the New Zealand Air Navigation Register, unless, in the opinion of the Director, the limitations and flight bans clearly compromise aviation safety.
Such an amendment also needs to define clearly “the public interest” as including the protection of natural quiet. Of the many definitions considered by the Americans, perhaps the simplest operational one put forward by their national park service is the best: “no aircraft audible”. The definition is based on the recognition that audibility depends not just on volume (loudness) but also on frequency (pitch). “Individuals who are actively listening can hear aircraft at lower levels than the ambient A-weighted sound levels... because aircraft sound often contains tones that are not present in the natural ambient sounds.”[190]Such a clear “no threshold” standard is considerably easier to implement than one that relies on acoustic measurements. Whatever statutory definition is ultimately defined, within parks DOC should be responsible for determining all noise thresholds, metrics, impacts and criteria for preserving “natural quiet”.
It is absolutely essential that DOC be given substantive discretion over these matters and that this power not be shared with the CAA. The American experience suggests that when two agencies have different orientations about the public interest and the importance of natural quiet in parks, joint authority is a formula for paralysis. A recent correspondence between DOC and New Zealand aviation officials reveal incompatible positions about the regulation of overflights. In response to DOC queries about expanding flight restrictions to protect natural quiet CAA took a singularly unsympathetic stance:
Some people might argue that they should be able to walk the Milford Track subsequent appeals did nothing to weaken Judge Jackson’s original decision in this regard. (The case was subsequently challenged in the High Court in Christchurch. without hearing aircraft noise. Some would argue that would not allow disabled or less than fit people without the time to tramp the opportunity to see the beauty of this area from the air. So you can see that we need to assess the overall benefit from the perspective of all New Zealanders and visitors, not just those concerned with a particular view on conservation...You can apply for any area you like, but you are very unlikely to succeed in justifying to us extensive airspace beyond the areas critical to the protection of fauna. Off the top of my head justification for a 1 km buffer out to sea would be hard to agree with, given that it may penalise the legal operation of aircraft following the coast to a significant degree, as well as having possible safety implications.[191]
This CAA view is of course legitimate but it virtually assures that the skies in New Zealand’s parks will become more crowded and that the land will grow even noisier. The Department of Conservation would have to make some difficult choices if it did receive a new ambitious statutory mandate to restore natural quiet to the nation’s parks. Reducing the intensity of flights, the basis of its present “landings” strategy, in many cases would not offer a solution. Once the serenity of a remote region has been shattered by the hum of aircraft, human sense of pristine isolation is lost and there is relatively little difference between 10 and 30 helicopters flying overhead. Here the Environmental Court’s position in Pigeon Bay Aquaculture Ltd v. Canterbury Regional is relevant and compelling. The court ruled:
It is also possible to imagine effects – often on amenities rather than on ecosystems
– where the first cut is the deepest: a new house in spare landscape, the first helicopter pad in a wilderness area, the first apartments in a suburban area. If there is one new house, helicopter pad or apartment block, does that not set a precedent that the second may have much less effect than the first? The amenity effects may be radically decelerating with increasing number of activities.[192]
This logic lay behind Judge Jackson’s subsequent decision to allow four additional new jet boat trips on the lower Dart River. The marginal impact on the character and quiet of the surrounding area was deemed trivial given the twenty that already existed.[193]As he stated succinctly: “...two jetboats do not make twice as much noise as one jetboat”.[194]
At the same time, outright bans in all national parks would contravene DOC’s statutory mission of providing for “the full enjoyment” of the parks for the growing number of visitors that prefer aerial recreation. Gordon Cessford, who may have researched the overflight issue as much as any scientist in the southern hemisphere, feels that ultimately, public policy should be based on the old fashioned Kiwi value of a “fair go”.[195]New Zealanders have a strong intuitive understanding of this non-legal principle. Just as tourists seeking the thrill and excitement of a scenic air tour should be allowed to enjoy this sort of adventure, hikers and the visiting public that seek natural quiet and seclusion deserve their fair chance. Because sound travels, and because of the difficulty in monitoring and enforcing standards in remote areas, in practical terms that will require a
In Dart River Safaris Ltd v. Kemp and Anor [2000] NZHC 448; (2000) NZRMA 440 (HC) the court held that the Environmental Court could not reduce a boat company’s access to the
ban of overflights in significant sections of New Zealand’s national parks.[196]But it also means that hikers will have to get used to overflights in other parts. Whenever possible these should be near roads where silence is already in short supply. In some cases a Park Management Plan could delimit aircraft activity according to specific time periods. One can imagine designated “quiet days” for certain areas. Less satisfactorily, but possible in some non-pristine areas, might be quiet hours during the day, as indeed was one of the court’s stipulations on parts of the Dart river between 11:30 and 13:30 in the above Kemp decision.[197]
For example, there is a natural flow of multi-day treks which leaves certain sections of parks essentially empty for long, predictable stretches of time. DOC could experiment with staggering flights accordingly. Time-sharing presumably gives the preservationist, pedestrian public an element of choice and control to synchronize their visits to the contested areas.
More likely, park Management Plans will have to divide up resources into quiet, flight-free zones and those where overflights are permitted. The Fox and Franz Joseph glaciers offer an excellent example. These two major glaciers on the south island’s west coast, separated by a little more than ten kilometres, are currently inundated with flights.[198]According to an unpublished 1994-95 study, the aircraft annoyed 65% of visitors doing long bush walks and 32% of those doing short ones.[199]Under these circumstances, and given the importance of helicopters for reaching the glaciers themselves, it would make sense to ban flights on one of the glaciers and allow intensive flights on the other.[200]This sort of “triage” approach to park management will undoubtedly be unpopular with all sides as rationing and compromises tend to be. But it may be the fairest go available. And
while DOC should consider the interests of existing air operations, a legislative amendment should explicitly reject the “grandfathering” of present routes. The goal is to restore “natural quiet,” not perpetuate “unnatural noise”.
Once a new equilibrium is reached, there may be hope for a sustainable rapprochement between recreationists and preservationists. In his discussion of the issue in the Journal of Environmental Ethics Mark Morgan argues that environmentalists need to recognize the benefits that tourism provides and utilize the industry to further their own aims. “Parks are not simply biological islands; they need continued public support for survival. In fact, tourism was credited as the driving force that “saved”America’s fledgling national parks movement from extinction.”[201]Besides contributing concessions revenues, scenic air operators can be important allies in political battles to expand protected lands. Finally, technology is not static. In response to the American environmental efforts, a “less disruptive” helicopter prototype was developed which one day should become the industry standard in national parks.[202]Utilization of electric engines in light aircraft could change the nature of the present debate completely. But until that happy day, the natural quiet of the national parks will remain an increasingly endangered commodity. New Zealand will continue to forfeit a gentle and especially valuable part of its natural heritage. Unless, over the roar of the engines, Parliament decides to make its voice heard.
* Director of research, Arava Institute for Environmental Studies, Visiting Professor, the University of Otago Faculty of Law. The author expresses his gratitude to Ian Williams and Nicola Wheen from the University of Otago Law Faculty, Dick Hingson chairman subcommittee on Noise/Aviation, American Sierra Club, Dr. Royden Somerville Q.C., Barrister, along with Gordon Cessford, Social Scientist and Clare Lenihan, Conservancy Solicitor (Southland) from the New Zealand Department of Conservation for their extremely helpful comments on an earlier draft of this article.
[1]Rachel Carson, “The Real World Around Us,” (Speech to the Sorority of Women Journalists, 1954) reprinted in Lost Woods, the Discovered Writing of Rachel Carson, Linda Lear, Ed., (Boston, Beacon Press, 1998) at 160, 162.
[2]Besides being home to the majority of the world’s flightless bird species, ecologically unique aspects of local fauna include three frog species that do not have a free- swimming tadpole stage, native lizards that do not lay eggs, giant carnivorous snails and of course the Tuatara — that taxonomical anomaly that is probably the closest remaining remnant of the dinosaurs. See: John Dawson, Rob Lucas, Nature Guide to the New Zealand Forest, (Auckland, Godick, 2000) at 10.
[3]Ibid.at 10.
[4]The most plausible explanation has to do with the islands’ physical separation from the Gondwana “mega-continent” that was so devastated.
[5]Gordon Cessford “Noise Impact Issues on the Great Walks of New Zealand,” Wilderness Visitors, Experiences and Visitor Management vol. 4 in Wilderness Science in a time of Change Conference, (RMRS-P-15) (2000) 69-76.
[6]National Parks Act 1980, s 4.
[7]Dawson and Lucas, supra n. 2 at 10.
[8]Overflights has been the general term in the aviation literature for this subject of regulation for at least thirty years.
[9]Nathan L. Scheg, “Preservationists versus Recreationists in our National Parks,”
5 Hastings West-Northwest Journal of Environmental Law and Policy 47, (1998).
[10]Edmund Hillary, “Foreword” in Robbie Barton and Maggie Atkinson, A Tramper’sGuide to New Zealand’s National Parks, (Auckland, Reed Press, 2002) at 6.
[11]See: Public Law 93-620 (January, 1975).
[12]New Zealand Department of Conservation, Visitor Strategy, (1996) “Natural Quiet, ”www.doc.government.nz/About-DOC/Policies-Plans-and-Reports/Visitor-
Strategy/001~Introduction.asp at 20. Among the many meanings for “natural quiet” that have been proposed, the U.S. National Park Services has defined
“natural quiet” as “the sound levels associated with a given acoustic environment, absent any mechanical or manmade noise sources” or “the quiet at the lower end of the ambient sound level range that occurs regularly between wind gusts, animal sounds, etc., not just the average sound level”. At times, however, it has preferred more lyrical descriptions such as the Service’s 1995 Report to Congress:
“Lulls in the wind or interludes between animal sounds create intervals where the quiet of a sylvan setting is quite striking. In considering natural quiet as a resource, the ability to hear clearly the delicate and quieter intermittent sounds of nature, the ability to experience interludes of extreme quiet for their own sake, and the opportunity to do so for extended periods of time [are] what natural quiet is all about.” U.S. National Park Service, Report To Congress On Effects Of Aircraft Overflights On The National Park System, (September 12, 1994), s 3.2.1 “Qualitative Assessment of Natural Quiet.” The Sierra Club, a leading American advocacy group suggests: “Natural quiet is the extended opportunity to experience only natural sounds amid periods of deepest silence.” www.sierraclub.org/policy/
conservation/airtours.asp.
[13]The issue was first raised in Grand Canyon Air Coalition versus the Federation Aviation Authority [1998] USCADC 194; 154 F 3d 455 at 459. (D.C. Circuit, 1998) where the U.S. National Park Service’s definition of natural quiet was upheld. More recently, the Federal 3[rd ]Circuit court supported this view. United States Air Tour Association v. the Federal Aviation Administration 298 F. 3d. 997 (D.C. Circuit, 2002).
[14]“Aircraft have been noted as audible ... as far as 10 to 15 miles from the corridors.” U.S. National Park Service, Aircraft Noise Model Validation Study (Grand Canyon National Park) HMMH Report No. 295860.9 (January, 2003) at s 2.3.2. “Region of
25% Aircraft Audibility.”
[15]Kristin L. Falzone “Airport Noise Pollution: Is There a Solution in Sight?” 26 Boston
College Environmental Law Review 769-807 (1999).
[16]For a non-technical review of the technical vagaries involved in measuring noise see: Alon Tal (Rosenthal) “Measuring Noise: Towards an Optimal Judicial Policy,”
20 Israel Law Review 74 (1985). See also: Sidney A. Shapiro, “Lessons From Apublic Policy Failure: EPA and Noise Abatement,” 19 Ecology Law Quarterly 1 (1992).
[17]Examples of these impulse noise events include: back-up alarms, whistles, bells, horns, sirens, fireworks, riveting, hammering, sonic booms and dogs barking. See Rebecca A. Niedzielski, Minnesota Pollution Control Agency, Environmental Impulse Noise Study 2 (May 1991) as reported in: Falzone, supra at n. 15, note 101 at 780.
[18]Gordon Cessford and Andy Thompson, “Managing Tourism in the New Zealand
Protected Area System,” 12 Parks 26 (2002) at 26.
[19]New Zealand Ministry of Tourism web site, www.trcnz.govt.nz/Topics/
Forecasts+and+Trends/Forecast+International+Visitor+Arrivals/
[20]New Zealand Ministry of Tourism, “The Tourism Industry,”www.tourism.
govt.nz/quicklinks/ql-tourismindustry.html
[21]Gordon Cessford and Andy Thompson, supra n. 18 at 26. In more conventional terms, tourism provides 16% of export earnings to New Zealand.
[22]The list of certified operators and their addresses are listed on the Civil Aviation Authority website: www.caa.govt.nz/ and is considered the most up-to-date listing. See under: Part 119 “Air Operator Holders”.
[23]Broken down by group category, “Package Travelers” and “Tour Groups” are much more avid consumers of this type of recreation than independent travelers, with four percent reporting participation. New Zealand Tourism and Research Council. See: “Activities and Attractions — Ranked by Tour Groups,” International Visitor Survey, www.trcnz.govt.nz/Topics/Behaviour+and+Characteristics/Travel+
Styles+-+Group/Activities-and-Attractions.htm
[24]Many factors complicate a proper “census” of air users. For instance, commercial surface water activities e.g. charter boats, in the Coastal waters off of Fiordland may operate according to a resource consent. Yet they utilize aircraft to transfer passengers to and from the ship. As no consent is required for this air transfer the specific number of flights and passengers remains unknown to DOC officials. Clare Lenihan, DOC Conservancy Solicitor, (November, 3, 2003) personal communication.
[25]A popular ornithological “myth” is that penguins, transfixed by airplanes, topple over as airplanes change directions and the birds try, unsuccessfully, to keep them in their sights. Dr. Richard Stone of the British Antarctic Survey reported, after five weeks of aerial observations, that while penguins may not fall down due to overflights, they suffer stress: “The worst possible effect is that there would be a reduction in their breeding performance. If they were incubating eggs this could be quite devastating for them.” See “Scientists Ask, Do Penguins Fall Over?” Reuters November 3, 2000, www.cnn.com/2000/WORLD/europe/11/
03/fringe.penguins.reut/
[26]B. Culik and R. Wilson, “Penguins Crowded Out?” 351 Nature 340, (May 30,
1991).
[27]Ibid.
[28]A. Nimon, R. Schroter and B. Stonehouse, “Heart Rate of Disturbed Penguins,” 374
Nature 415, (March 23, 1995) See also: W.R. Fraser et. al., 11 Polar Biology, 525-531
(1991).
[29]Ian Jamison, University of Otago Department of Zoology, personal communication,
(October 8, 2003).
[30]R.J. Steidl, and R.G.Anthony, “Experimental Effects of HumanActivity on Breeding
Bald Eagles,” 10 Ecological Applications 258-268 (2000).
[31]D.H. Ward, et. al., “Response of fall-staging Brant and Canada Geese to Aircraft
Overflights in Southwestern Alaska,” 63 Journal of Wildlife Management 373-381
(1999).
[32]D.K. Delaney, et. al., “Effects of Helicopter Noise on Mexican Spotted Owls,” 63
Journal of Wildlife Management 60-76 (1999).
[33]E.W. Born, et. al. “Escape Responses of Hauled Out Ringed Seals, Phoca hispida to Aircraft Disturbance” 21 Polar Biology 171-178. (1999).
[34]A. Frid, “Dall’s Sheep Responses To Overflights By Helicopter And Fixed-Wing
Aircraft,” 110 Biological Conservation 387 (2003).
[35]Generally sustained exposures of decibel levels of 85 decibels are associated with permanent hearing loss. For an extremely thorough review of the literature regarding physiology and noise see: World Health Organization, Community Noise, Ed. B. Berglund and T. Lidvall, (Geneva, WHO, 1995).
[36]See: Health Council of the Netherlands: Committee on the Health Impact of Large
Airports. Public Health Impact Of Large Airports. The Hague: Health Council of the Netherlands, Publication nr 1999/14E, (1999).
[37]Gordon Cessford, supra n. 5.
[38]The guidelines to these surveys can be found in: K.L. Booth, N.C. Jones and P.J. Devlin, Measuring the Effects of Aircraft Overflights on Recreationists in Natural Settings, Department of Conservation Technical Serves, Number 18, (Wellington, Department of Conservation, 1999).
[39]Ibid. at 73.
[40]James Gramann, “The Effect of Mechanical Noise and Natural Sound on Visitor Experiences in Units of the National Park System,” 1 National Park Service Social Science Research Review 1 (Winter 1999) at 5. U.S. responses rarely exceeded 10% annoyance levels and are generally far below this.
[41]S.T Sutton, “Visitor Perceptions of Aircraft Activity and Crowding at Franz Josef and Fox Glaciers,” Science for Conservation, Department of Conservation, (1998) at
94.
[42]Cessford supra n. 5 at 72.
[43]“For example, when 30% of visitors were noticing noise, 20% of the entire sample were also bothered by it. But when 80% were noticing noise, around 40% were bothered. These patterns suggest that the tolerance for noise effects decrease as they become more commonly noticed.” Ibid. at 72-73.
[44]S.T. Sutton, “Aircraft Noise Impacts in the Glacier Region of the West Coast of New Zealand,” 47 Noise Control Engineering Journal 87 (1999). It is important to distinguish between a “25% -time audible” standard and a “25% subjective disturbance” rate as was recommended in the present case.
[45]Cessford, supra n. 5 at 74. On being made aware of such results, DOC officials report that some flight operators responded voluntarily to change aircraft operating conditions to reduce negative effects. Interestingly, visitors on the Kepler Track did not appear to be affected by aircraft, but reported considerable annoyance at the other people staying in the huts.
[46]The Civil Aviation Act, 1990 (hereinafter: CAA) An excellent and comprehensive review of aviation law in New Zealand was prepared by Chief Legal Counsel of the Civil Aviation Authority, Peter O’Brien and can be found at: “Aviation” The Laws of New Zealand, vol. 3, (R. Cook Ed.) (Wellington, Butterworths, Wellington,
2000).
[47]The Act opens by stating the statutory objectives as:
(a) To establish rules of operation and divisions of responsibility within the New
Zealand civil aviation system in order to promote aviation safety; and
(b) To ensure that New Zealand’s obligations under international aviation agreements are implemented; and
(c) To consolidate and amend the law relating to civil aviation in New Zealand.
[48]Section 14(1) of the CAA “The Functions of Minister” states that “the principal functions of the Minister under this Act shall be to promote safety in civil aviation at a reasonable cost,” with sub-section 14(3) defining reasonable cost laconically as when: “the value of the cost to the nation is exceeded by the value of the resulting benefit to the nation.”
[49]Civil Aviation Rules, (hereinafter: CAR) Part 135 sets forth a six stage application process that is detailed in sections 3-8. These include:
(a) Pre-application.
(b) Formal Application.
(c) Document Compliance.
(d) Demonstration and Inspection.
(e) Initial Certification.
(f) Final certification. A fee of that ranges from three to ten thousand dollars is required of applicants, depending on the level of complexity of the requested operation.
[50]CAA, Sec. 9(1)(b)(ii).
[51]Interview with John Fogden, Manager Rotary Wing & Agricultural Operations, Civil Aviation Authority of New Zealand, (October 8, 2003). This process is a swift one. CAA itself requires that the application be granted “as soon as practicable”. Section 9(1).
[52]Fogden, supra, n. 51.
[53]Ibid. While the CAR rules set basic requirements, the authority encourages applicants to consider these as “baseline minimum” levels, which should be exceeded. Annual testing of pilots, for example, may be sufficient, but examinations every six months are preferable.
[54]Ibid. 51.
[55]CAR Part 91, rule 91.307.
[56]CAA sec. 29A.
[57]The Civil Aviation Act 1964. (RS Vol 16, at 41.) CAA legal staff are keenly aware of the additional “public interest clause.” Leslie MacIntosh, Chief Legal Counsel, CAA, personal communication, (October, 13, 2003).
[58]Parliamentary Commissioner for the Environment, Management of the Environmental
Effects Associated with the Tourism Sector, (1997).
[59]See position of Maurice Williamson, July 31, 1996 NZPD, 557, 14052.
[60]Parliamentary Commissioner for the Environment, Management of Noise from Aircraft
Overflying Sensitive Environments, December, 2000.
[61]CAR Part 73.51(a), Designation of Air Space amended August 18, 2002. See also, CAR Part 73 Special Use Air Space, first effective, January 1, 1998.
[62]CAR Part 73, Rule 73.9.
[63]CAR Part 73, Rule 73.51
(a) The Director (of Civil Aviation) may designate airspace under this Subpart only where the Director considers it necessary in the interests of aviation safety or security or in the public interest.
(b) The Director shall ensure that each area of designated airspace is as small as practicable, consistent with the activities for which the area is required.
The rules continue:
73.53 Restricted areas
(a) The Director may-
(1) designate an area of airspace as a restricted area within the territorial limits of New Zealand, to restrict the activities of aircraft within that area; and
(2) impose conditions under which-
(i) aircraft may be permitted to fly within the area; and
(ii) the controlling authority shall operate.
(b) The Director shall, for each restricted area-
(1) specify the type of activity for which it is designated; and
(2) specify the controlling authority applicable to it; and
(3) identify it by the letters NZR followed by a number, except that on maps and charts the letter R followed by the number may be used.
(c) The controlling authority specified under paragraph (b)(2) shall-
(1) control the entry and operation within the area; ...
[64]While CAR Rule 11 Subpart C has a formal title: “Ordinary Rules for Airspace Assignment and Use,” and for many years has been the subject of deliberation, the actual rule has yet to be promulgated.
[65]Mark Hingston, Manager Aeronautical Services, Civil Aviation Authority of New Zealand, personal communication, (October 15, 2003). For areas that are changing, the effective date of the old description is amended to “effective until”.
[66]A copy of the restricted area specifications are placed on the CAA web site, and a Gazette Notice is published to complete the “formal” part of the process. Details are then forwarded toAviation Publishing (part ofAirways Corporation of NZ Ltd) who publish the NZ Aeronautical Information Publication on behalf of the CA. If promulgation is required before a regular publication cycle, the NOTAM Office that coordinates international commercial air carriers will distribute it electronically to the aviation community. The Civil Aviation Authority has responsibility for these functions under Section 75 of the Civil Aviation Act. The Authority has a contract with Airways for this, and they are also certificated under CA Rule Part
175, Aeronautical Information Service Organisations — Certification to provide these services. Ibid.
[67]NZ Air Navigation Register, “Restricted Areas,” (Updated June 11 2003)
www.caa.govt.nz/fulltext/airnavreg/Restricted%20Areas.pdf
The listings contain a coded list of specifications under “Effective from/until”: The First two digits are the year;
The Second pair are the month; The Third pair are the day;
The Fourth pair are the hour (in 24 hour clock); and
The Last two are the minute.
[68]Mark Hingston, supra, n. 64.
[69]CAR Part 73, Rule 73.61 Low Flying Areas.
[70]CAR, Part 91, Rule 91.311.
[71]CAA, Sec. 97 Nuisance, trespass, and responsibility for damage
(1) No action for nuisance may be brought in respect of the noise or vibration caused by aircraft or aircraft engines on an aerodrome, if the noise or vibration is of a kind specified in any rules made under section 28 or section 29 or section
30 of this Act, so long as the provisions of the rules are duly complied with.
(2) No action shall lie in respect of trespass, or in respect of nuisance, by reason only of the flight of aircraft over any property at a height above the ground which having regard to wind, weather, and all the circumstances of the case is reasonable, so long as the provisions of this Act and of any rules made under this Act are duly complied with.
[72]CAR Part 91, Rule 91.801.
[73]New Zealand Standard NZS:6807, 1994 Noise Management and Land Use Planning for Helicopter Landing Areas.
[74]Parliamentary Commissioner for the Environment, (2000) supra n. 59 at 3.
[75]Conservation Act 1987, s 7.
[76]DOC’s authority extends inter alia to historic places, national parks, Crown reserves and public walkways. Ibid. s 6 and 7.
[77]National Parks Act, 1952, s 15.
[78]National Parks Act, 1987, s 4(1).
[79]Department of Conservation, “The Department of Conservation’s Role in Resource
Management”, in Policies, Plans and Reports, www.doc.govt.nz/ (updated, October,
2003).
[80]Ibid. s 4(2)(a).
[81]Ibid. s 4(2)(b).
[82]Ibid. s 12 and 13.
[83]Ibid. s 14.
[84]Reserves Act 1977, s 47(1). Wilderness, theoretically, can be established under the Reserves Act, and Conservation Act, s20. In addition, s 13 of the Reserves Act creates National Nature Reserves, such as the Southern Antarctic Islands that are typically more secluded and access is limited, with entry only allowed by permit. Clare Lenihan, Conservancy Solicitor, personal interview, (October 20, 2003).
[85]Ibid. s.14(2) Subject to this section, while any area is set apart as a wilderness area,—
(a) Its indigenous natural resources shall be preserved:
(b) No building or machinery shall be erected on the area:
(c) No building, machinery, or apparatus shall be constructed or maintained on the area:
(d) No animals, vehicles, or motorised vessels (including hovercraft and jet boats) shall be allowed to be taken into or used in the area and no helicopter or other motorised aircraft shall land or take off or hover for the purpose of embarking or disembarking passengers or goods in a wilderness area:
(e) No roads, tracks, or trails shall be constructed in the area.
[86]Ibid. 45. Of no less importance in practice may be the Conservation Management
Strategies that are prepared by park managers.
[87]In 1990, an amendment to the Conservation Act created the New Zealand Conservation Authority and granted it the powers to approve conservation management strategies and plans under the National Parks Act. The thirteen member Authority is appointed by the Minister of Conservation, with four members selected from public nominations and nine after consultation with statutorily selected organizations. See Section s 6A-6C of the Conservation Act
1987 and s 2 of the National Parks Act 1980.
[88]Ibid. 30. Such amenities, of course, must comply with the Park management plans.
[89]Ibid. s 46(3).
[90]Ibid. 14(2).
[91]Ibid. 49 (2) (a) and (b).
[92]Conservation Act 1987, s 17U(1)(e).
[93]Ibid. 17U(2)(b).
[94]Ibid. 57.
[95]Specific mention is made of aircraft in the Act in section 17ZF of the Conservation Act. This section stipulates that in the absence of an emergency situation or for military uses, no aircraft shall take off or land inside conservation areas outside of certified aerodromes.
[96]“If modern visitors become the dominant user group in state parks, they will begin to dictate the amount of development, since fee payment creates a vested interest.” J. Mark Morgan, “Resources, Recreationists and Revenues: A Policy Dilemma for Today’s State Park System,” 18 Environmental Ethics 279 (1997) at 286. See also: Dwight McCurdy, Park Management, Carbondale Ill. Southern Illinois University Press, (1985) at 34.
[97]Harry Maher, National Revenue Manager, Department of Conservation, (October
14, 2003). The Otago concessions framework offers a typical example of how the business of aircraft landings works. Companies are charged $12 plus GST per head landed/day for scenic landings. Heliskiing rates go up to $25 to $60 plus GST per person/day, depending on the quality of the ski product and the type of charter. For the coming year, heliski operators will pay the DOC a minimum volume commitment for the rights to heliski terrain blocks on conservation land and in the moderate impact zone of Mount Aspiring National Park at rates varying between $500 - $6800 plus GST per terrain block. The higher fees reflect better skiing and less adverse weather patterns. Richard Clarke, Community Relations Officer – Concessions, Otago Conservancy, personal communication, (October 16,
2003).
[98]Maher, supra n. 96.
[99]Resource Management Act, 1991, s 9(8) ) and s 12(5). See also the definition of airport in s 2.
[100]For example, Israel’s Abatement of Nuisances Regulations (Unreasonable Noise)
(1990) regulation 9 grants aircraft noise and that of all other transportation, exemption from the country’s stringent ambient noise level standards. See generally, Alon Tal supra. n.16. Queenstown Lakes District Council v. McAulay, the High Court appears to take a somewhat different view. In this case, the decision by a council to enjoin all flights from a rural home was vacated by the Planning Tribunal. In supporting the decision of the Planning Tribunal, the High Court held that assuming there is sufficient room, use of aircraft as a mode of transport ancillary to a lawful permitted activity has no town planning consequence apart from noise. [1996] NZHC 1816; (1997) NZRMA 178.
[101]Aviation Activities Ltd. v. Mackenzie District Council (Environmental Court, 72/00
31 March 2000). In this case, the Mackenzie District Council refused to grant a resource consent to operate tourist helicopter operations from helicopter pads. Judge Jackson ruled in favour of the appellant company. While airway safety was at the heart of the ruling, the court also rejected arguments by local tour guides that the noise from the helicopters would disturb the natural quiet at nearby Cowan’s Hill, a popular hiking destination for views over Lake Tekapo and the Southern Alps. Ibid. at 14.
[102]Glentanner Park (Mount Cook) Ltd. v. Mackenzie DC (Unreported, Environment Court
W 50/94 (June 15, 1994)).
[103]Ibid. at 8. “When setting these matters against the provisions of section 5 of the Resource Management Act, we note that the Act relates to managing the use, development and protection of natural and physical resources in a way which enables people and communities to provide for their social, economic and cultural well being and their for their health and safety, while avoiding remedying or mitigating any adverse effects of activities on the environment. That is one of the fundamental sections of the Resource Management Act and we would need a great deal of persuasion before we would hold that an Act couched in the terms contained within the Civil Aviation Act of 1990 would override those matters of national and environmental importance.”
[104]Director of Civil Aviation v. Planning Tribunal (1997) 3 NZLR 335.
[105]“In considering the present application by Glacier, both the council and the tribunal are bound by s 104 to have regard to “any actual and potential effects on the environment of allowing the activity.” “Environment” is defined s 2 as including the social and economic conditions which affect people and communities. The meaning of “effect” is given in s 3 and includes “any potential effect of low probability which has a high potential impact”. Ibid. at 339.
[106]General Policy for National Parks, s 21 “Aircraft and Airspace” (1983)
www.doc.govt.nz/About-DOC/Policies-Plans-and-Reports/General-Policy- for-National-Parks-1983/021~Aircraft-and-Airspace.asp
[107]In practice, this includes advocacy in Resource Management Act forums, as the
Minister is doing in the Fiordland air access case. Clare Lenihan, supra n. 24.
[108]Department of Conservation, General Policy for National Parks (1983)
www.doc.govt.nz/About-DOC/Policies-Plans-and-Reports/General-Policy-
for-National-Parks-1983/index.asp at s 21.
[109]Parliamentary Commissioner for the Environment (2000) supra n. 59 at 4. During the latter part of the 1990s a Memorandum of Understanding was initiated between the DOC and the CAA “to provide a framework for an effective professional relationship and to permit management of the effects of aircraft operations on natural historical, cultural and recreational values”. Yet drafting efforts failed to reach fruition, much less to signing and implementation.
[110]Department of Conservation, Visitor Strategy “Natural Quiet” (1996) at 20.
[111]Department of Conservation, Otago Conservation Management Strategy, August, 1998 at 649.
[112]Ibid. at 653-655.
[113]Fiordland National Park Management Plan – Draft, www.doc.govt.nz/pdfs/
southland/FNP-pdfs/FNP-Mgmt-Plan.pdf
[114]Royal Forest and Bird Protection Society, Objection to Concession Application by Airwest Helicopters Ltd l. for IrregularAircraft Landings, (September, 26, 2003). Or Submission on Resource Consent Application on Application by Garden of Eden Helicopters, Limited”. Copies available with author. Arguments put forward include inadequacy of environmental impact statements, information about operations, availability of road access to sites.
[115]RMA 1086A/00.
[116]Resource Management Act, 1991 s 12(3).
[117]Under s 9(1) of the Resource Management Act, no person may use any land in a manner that contravenes a rule in a district plan or proposed district plan unless the activity is expressly allowed by a resource consent granted by the relevant territorial authority. Furthermore, under s 12 of the Resource Management Act, any activity in the Coastal Marine Area involving physical interference or occupation of land requires a resource consent. This means in practice that any activity involving physical interference of land usually requires a resource consent; when there is no such interference, there’s a presumption that activities are allowed. The Council took the position that there was insufficient evidence of physical interference. The section does not apply to government activities within the boundaries of land managed under the Conservation Act as long as they are consistent with the management plan. (See s 4(3)).
[118]There are only two gazetted Wilderness Areas (the Glaisnock and the Pembroke Wilderness Areas), both in the Milford vicinity, while a third, in the southwest of Fiordland is presently at the stage of public review for notice and comment. Department of Conservation, Fiordland National Park Management Plan, supra, n.
113. at s 4.3.5. According to the Resource Management Act, the mean high water line demarcates the boundary of the park’s jurisdiction on the coast.
[119]Mediation during the intervening period has brought the sides closer to agreement on issues relating to fauna, but they remain at an impasse with regards to wilderness. Clare Lenihan, personal communication, supra n. 24.
[120]To date, two interim procedural decisions have been handed down by the Court, in response to challenges to the admissibility of the Minister of Conservation’s evidence as well as a request pursuant to s 293 of the Act by the Minister to amend his original relief. See: Minister Of Conservation and Royal Forest And Bird Protection Society Inc v. Southland Regional Council, Decision No. C 137/2003 and Decision No. C 138/2003.
[121]Fiordland National Park Management Plan, supra n. 113. www.doc.govt.nz/pdfs/
southland/FNP-pdfs/FNP-Mgmt-Plan.pdf, at 81.
[122]“The annual number of aircraft movements (landings and take-offs) in the Milford Aerodrome averages about 14,000, but because of weather conditions this number is spread over relatively few days and peaks of over 200 movements per day have been recorded. By way of comparison Christchurch International Airport has an average of about 400 movements per day.” Ibid. at s 4.5.
[123]“The Fiordland National Park presently contains two areas gazetted as wilderness areas. The Glaisnock Wilderness Area is a significant block adjoining the Milford Track corridor.... Due to its size and topography it provides significant opportunities to experience natural quiet. However, with the increase in aircraft movements in the area, particularly associated with Milford Sound/Piopiotahi and to a lesser extent to George Sound, there is the risk that his value will diminish. Working with aircraft operators to ensure flight paths and landings do not adversely affect these values is essential. The second gazetted wilderness area is the Pembroke which borders on Milford Sound/ Piopiotahi. It is roughly triangular in shape and provides an extensive alpine wilderness experience. It is arguably considered the most accessible wilderness opportunity in New Zealand. It has a high level of use on its boundaries, particularly adjoining Milford Sound/ Piopiotahi. It does not provide the degree of solitude generally regarded acceptable in wilderness areas as it is subject to noise, particularly from overflying aircraft. However, it is essential that the present level of noise tolerance is not exacerbated further. As for the Glaisnock wilderness area, efforts will be made to work with aircraft operators to ensure flight paths and landings do not adversely affect these values”. Ibid at 81-82.
[124]Letter from Gerry McSweeney to Sandra Lee, 15 January, 2002, copy with author.
[125]Ibid. at 4.
[126]It is possible that several other cases were “diverted” but no data exist to support this. Clare Lenihan, supra n. 84. Also, Dean Van Millow, personal communication,
(October 21, 2003).
[127]Parliamentary Commissioner for the Environment (2000) supra n. 59 at 4.
[128]Cessford supra n.5 at 75.
[129]“GrandCanyonNationalPark,”U.S.NationalParkServicewebsite, www.nps.gov/
grca/
[130]Public Law 93-620 (January, 1975).
[131]Public Law 100-91, (August, 1987).
[132]Special Federal Aviation Regulations, 50-2 (November, 1988).
[133]John McCain, “Overflight Oversight,” National Parks, September/October, 1997)
at 41, reprinted in Grand Canyon Explored website, www.kaibab.org/gc/misc/
mccain.html McCain acknowledged that air tourism provided legitimate access for elderly and disabled individuals, but was troubled by the 70% of park managers, who when surveyed, responded that their parks were affected by overflight noise.
[134]Dick Hingson, personal communication, (October 11, 2003).
[135]One route abbreviates the path in the south west section of the park, avoiding flights over the Haulapai Reserve while another route change, eliminates flights over the National Canyon and Havasupai Reservation. The eastern portion of the park was unaffected.
[136]Federal Aviation Administration, Final Rules, (1996).
[137]For a strong polemic against the overflight restrictions from this period see: Ann E. Lane, “Scenic Air Tours Over Our National Parks: Exploitation of Our National Resources or Environmental Solution?” 62 Journal of Air Law and Commerce, 523
(1996).
[138]Grand Canyon Air Coalition versus the Federation Aviation Authority, supra. n. 13. The
FAA’s rule was in fact challenged by both operators — who saw it as “too much, too soon” — and environmentalists — who saw it as “too little, too late”.
[139]Commercial Air Tour Limitation in the Grand Canyon National Park Special Flight Rules
Area, April 4, 2000, 14 CFR ss 93.303-.325.(2000).
[140] 298 F. 3d. 997 (DC Cir. 2002).
[141]Ibid.
[142]Dick Hingson, supra n. 134.
[143]Steven E. Bosak, Government Affairs Representative, National Parks Conservation
Association, personal communication, (October 14, 2003).
[144] 49 USC 40128 (2000).
[145]Ibid. § 40128.
(a)(2)(B) ‘‘Whenever an air tour management plan limits the number of commercial air tour operations over a national park during a specified time frame, the Administrator, in cooperation with the Director, shall issue operation specifications to commercial air tour operators that conduct such operations. The operation specifications shall include such terms and conditions as the Administrator and the Director find necessary for management of commercial air tour operations over the park.”
[146]Ibid. § 40128.
(a)(1) “A commercial air tour operator may not conduct commercial air tour operations over a national park or tribal lands except (A) in accordance with this section; (B) in accordance with conditions and limitations prescribed for that operator by the Administrator and (C) in accordance with any applicable air tour management plan for the park or tribal lands.”
[147]Ibid. § 40128 (b)(1)(B).
[148]Ibid. (b)(4)(B).
[149]Ibid. § 40128 sec. 805.
[150]Ibid.Ԥ 40128 (b)(3).
CONTENTS.—An air tour management plan for a national park—
(A) may prohibit commercial air tour operations in whole or in part;”
[151]Ibid. § 40128 (b)(3)(B).
[152]Ibid. ‘‘§ 40128 sec. 804.
[153]14 CFR 91 and 36 “National Parks Air Tour Management, Final Rule.” (2000).
[154]Ibid.14 CFR 91 § 136.3(i).
[155]Public Law No. 88-577 codified as 16 USC §1131. (1964). The Act’s objective was to secure for the American people of present and future generations the benefits of an enduring resource of wilderness” and set aside lands that today include 104 million acres with many people envisioning the system growing to include 300 million acres. Here, human intervention is considered altogether inappropriate and humans are perceived as “outsiders” with only limited rights, with only extremely modest markers and facilities for hikers and campers allowed. See generally, Michael McCloskey, “What the Wilderness Act Accomplished in Protection of Roadless Areas Within the National Park System,” 10 University of Oregon Journal of Environmental Law and Litigation 455 (1995).
[156]George Nickas, “Preserving an Enduring Wilderness: Challenges and threats to the National Wilderness Preservation System,” 76 Denver University Law Review,
449 (1999).
[157]Destry Jarvis, President, Outdoor Recreation and Park Services, personal communication, (October 13, 2003).
[158]Steven E. Bosak, Government Affairs Representative, National Parks Conservation Association, personal communication (October 15, 2003).
[159]Destry Jarvis, supra n. 157.
[160]Hingson, supra n. 134.
[161]D.J. Beal, “Campers Attitudes to Noise and Regulation in Queensland National Parks” 4 Australian Parks and Recreation 38, (1994); P.S. Valentine, D. Newling and D. Wachenfeld, The Estimation of Visitor Use from GBRMPA Data Returns, CRC Reef Research Technical Report, No. 16, CRC Reef Research Centre, TownsvilleAustralia,
(1997).
[162]For a few diverse examples see: Mary Hamilton, “Aircraft Activity And Sound Levels Relative To Recreation Opportunity Spectrum Settings In The Great Barrier Reef Marine Park: A Case Study From Whitehaven Beach, Whitsunday Island,” Research Publication, No. 75, Great Barrier Reef Marine Park Authority,(2003); J.T. Hicks, B.R. King and M.Y. Chaloupka, Seaplane and Vessel Disturbance of Nesting Sea bird Colonies on Michaelmas Cay, Management Report No. 1, Queensland National parks an Wildlife Service, Australia (1987).
[163]For the description of a campaign in Tasmania see: The Wilderness Society, “Wilderness Integrity, Not Additional Helicopters,” (May 3 2000), www.wilderness.org.au/regions/tas/20000503_mr.
[164]Environment Australia, Great Australian Bight Marine Park (Commonwealth
Waters) Plan of Management, http://ea.gov.au/coasts/mpa/gab/plan/
chapter5.html.
[165]EnvironmentalAustralia,Australian National Guidelines for Cetacean Observation, February, (2000) at 8.
[166]National Parks Association of New South Wales “Appropriate Recreation in National Parks” Policy number 20 at s 9.3.1-9.3.3 (2003). The tough policy is thus justified: “Noise is probably the worst problem, but there is also a strong visual distraction and the psychological impact of realisation that almost nowhere can one escape from the machinations of man. There is also some degree of air and water pollution and wildlife disturbances. If provision is made for take-off and landing within the park, there will also be the added impact of vegetation clearance, weed invasion, and the necessary ancillary roads and other works for access and maintenance. More trees may have to be removed or lopped to provide sufficient clearance for approach and landing. Amphibious aircraft will present a separate set of problems. The downdraft of helicopters has potential for the spread of campfire embers, local soil erosion, and animal disturbance.”
[167]See generally, Timothy Riordan and John Davis, “Outdoor Recreation and the
American Environment,” in The American Environment: Perceptions and Policies,
(New York, John Wiley and Sons, 1976) at 259.
[168]Scheg supra, n. 9 at 48-49.
[169]Dart River Safaris Ltd v. Kemp (2001) NZRMA 433 (HC).
[170]Ski Enterprises Ltd. v. Tongariro National Park Board and Another (1964) NZLR 884. In the American context see: Sierra Club v. Morton, [1972] USSC 84; 405 U.S. 727 (1972).
[171]Hells Canyon Alliance v. U.S. Forest Service 227 F 3d (9th Cir. 2000) at 1171-73. In this case the U.S. Forest Service developed a Recreation Management Plan that contained restrictions on motorized use levels and three periods during which use of motorized watercraft was banned. The plaintiffs argued that the three day-bans were inadequate, but the court did not agree.
[172]See: Voyageurs Regional National Park Association versus Lujan, U.S. 996 F. 2d
424 (8[th ]Circuit, 1992) where environmentalists sued the American Department of Interior over the use of snowmobiles in this relatively wild Minnesota park. The court held that snowmobiling could only be allowed after “reasoned determination that such a use was not inconsistent with future wilderness designation”. When the ban was expanded, local snowmobiling enthusiasts countered with a successful suit of their own Mausolf v. Babbitt, 913 F. Supp. 2334 (1996). In its decision, U.S. District Court for the District of Minnesota held that snowmobiling in this Minnesota park was in fact legitimate and that no evidence suggested that endangered species would be affected. The court went further stating: “The precept that increased access leads to increased degradation, if taken to its logical extreme would allow the closure of Voyageurs altogether.” Ibid. at 1334. Yet, the court also held that a “significant impact” on wildlife would constitute grounds for such closures. Yellowstone National Park has served as the quintessential “battle field” between pro and anti-snowmobile forces.
[173]Joseph Sax, Mountains Without Handrails, Reflections on the National Parks, (Ann
Arbor, University of Michigan Press, 1980).
[174]Ibid. at 12-13, 14.
[175]Ibid. at 14, 15.
[176]Eugenie Sage, Royal Forest and Bird Protection Society, supra n. 114 s 13, 14.
[177]Sax acknowledges: “The preservationist does not condemn the activities he would like to exclude from the park. He considers them perfectly legitimate and appropriate if not admirable – and believes that opportunities for conventional tourism are amply provided elsewhere: at resorts and amusement parks, on private land and on a very considerable portion of the public domain.” Sax supra n. 173 at 14.
[178]Anne E. Lane, “Scenic Air tours over Our National Parks: Exploitation of Our
National Resources or Environmental Solution?” 62 Journal of Air Law and Commerce
523 (1996) at 524.
[179]John Shadegg, Oversight Hearing Before The Subcommittee On National Parks
And Public Lands, U.S. House Of Representatives, “Analysis Of National Park Service Data On Air Overflight Sound at the Grand Canyon National Park, and the Grand Canyon River Wilderness Management Plan and Associated Colorado
River”, Washington, D.C. (September 24, 1998).
[180]“Like many environmental philosophers, I find the idea that the beauty of wildernesses makes them valuable in their own right and gives us a moral duty to preserve and protect them to be attractive... the appreciation of natural environments and the appreciation of great works of art are activities more similar than many people have supposed.” Janna Thompson, “Aesthetics and the Value of Nature,” 19 Environmental Ethics 291 (1998) at 291.
[181]Aesthetic character has an objective and subjective base. Emily Brady, “Aesthetic CharacterandAestheticIntegrityinEnvironmentalConservation,” 24 Environmental Ethics 75 (2002).
[182]Ibid. at 88, 89.
[183]Dan Dustin and Leo McAvoy, “The Decline and Fall of Quality Recreation Environments and Opportunities” 4 Environmental Ethics, 49 (1982).
[184]“The community is a fictitious body, composed of the individual persons who are considered as constituting its members. The interest of the community then is, what? – the sum of the interest of the several members who compose it.” Jeremy Bentham, “Of the Principle of Utility” in Utilitarianism and Its Critics, J. Glover, Ed. New York, Macmillan Publishing, (1990) at 10.
[185]See generally J.J.C. Smart, “Act- Utilitarianism and Rule Utilitarianism,” in
Utilitarianism and Its Critics. Ibid. at 199-200.
[186]Garret Hardin, “The Tragedy of the Commons,” 162 Science 1244 (1968).
[187]In 1999, it was projected that flights in the Milford Track region would increase by at least 60% over the next ten years. M. Hunt, “Management of the Environmental Noise Effects Associated with Sightseeing Aircraft in the Milford Sound Area,” New Zealand, International Recreational Noise Symposium, Effects On Man And On The Environment, Queenstown, New Zealand, November, 20 1998, (1999) at 133-
141.
[188]Ibid. s 4(2)(e).
[189]Parliamentary Commissioner (2000) supra n. 59 at 6.
[190]“Changes in Noise Evaluation Methodology,” 64 Federal Register at 38.012
(1996).
[191]Letter from Len Wicks to Anna Gerraty (June 24, 2003). Copy with Author.
[192][1999] NZEnvC 105; (1999) NZRMA 209 at 230.
[193]Kemp v Queenstown-Lakes District Council [1999] NZEnvC 505; (2000) NZRMA 289 (EC). The numerous river through a competitor’s resource consent and the sides were referred to the environmental court to resolve outstanding safety issues. Kemp v. Queenstown
Lakes District Council [2000] NZEnvC 314; (2001) NZRMA 337 was an attempt by the Environmental Court to determine operating operations that would ensure safety on the river. Unhappy with the decision, a second appeal was lodged in Dart River Safaris Ltd v. Kemp (2010) NZRMA 433 (HC). Here the High Court ruled that in meeting its obligation to take into account health and safety matters under s 5 of the Resource Management Act, the Environmental Court needed to better consider safety requirements and ensure that an operational plan was in place, rather than delegate safety issues to the harbourmaster.)
[194][1999] NZEnvC 505; (2000) NZRMA 289 at 312.
[195]Gordon Cessford, Visitor Research Specialist, Department of Conservation, personal communication, (October 16, 2003).
[196]Areas that are deemed to be “back country” or remote experience zones offer a better basis for selecting flight-free areas than lands that are legally declared wilderness areas. Because DOC applies extremely strict criteria prior to designation, at present less than 10% of national park lands (barely 2% percent of New Zealand’s lands over all) are formally declared wilderness areas See: Gordon Cessford and Murray Reedy, “Wilderness Status and Associated Management Issues in New Zealand,” in The State of Wilderness in New Zealand, Wellington, Department of Conservation, Ed. G. Cessford, (2001) at 48.
[197]Ibid. at 70.
[198]The Draft Westland Tai Poutini National Park Masterplan describes: “The Frequency of aircraft movements, particularly of rotary wing aircraft (helicopters) has reached such high levels that aircraft noise can be heard almost continually in the glacier valleys during peak times.”www.doc.govt.nz//Westland-Tai-Poutini-
National-Park-Management-Plan/.
[199]This Masters thesis is cited in the Fiordland Masterplan. Ibid.
[200]American environmentalists have made a distinction between “air taxis” which offer point-to-point access and “air tours,” which circle scenic attractions at low altitudes. As the former can be important for reducing damage from road development, they are generally more sympathetic towards it. In any event, DOC’s landing policy for flights might be reconsidered once they have greater authority over air space.
[201]J. Mark Morgan, “Resources, Recreationists and Revenues: A Policy Dilemma for
Today’s State Park System,” 18 Environmental Ethics 279 at 283.
[202]“Grand Canyon Park Service To Unveil Quiet Technology Helicopter,” Noise News for Week of December 28, 1997 www.nonoise.org/news/1997/dec28.htms.
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