Game Animal Council Submission - Section 4

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4.0 ADDENDA

This section contains detailed proposals and recommendations in respect of questions 4 and 6 of the ECDD. It also contains a special addendum on matters the Association expects the establishment committee to consider when advising Ministers on the drafting of founding legislation for the council.

4.1 AN ALTERNATIVE MODEL FOR ESTABLISHMENT

Section 3.1.1 of the discussion paper appears to opt for a model of establishment, similar to that of the National Fish & Game Council, under part 5A of the Conservation Act 1987.

Having investigated this matter in some depth the Association believes a better model is available as follows:

• That the council may be established under its own Act of Parliament, as a statutory entity pursuant to Section 7(1)(a), of the Crown Entities Act 2004.
• That the council may be constituted as a body corporate, and may apply for exemption from income tax, and rules governing acquisitions, stocks, securities, and derivatives, pursuant to Schedule 1 or 2, of the Crown Entities Act 2004.
• That the council may have direct accountability to a principal Minister, but would not be prevented from establishing relationships with other Ministers with direct and enduring interests in the work of the council (S27(2) of the Crown Entities Act).
• That the game animal council could become either a Crown agent or an autonomous Crown entity, deriving from such status, benefits not obtainable by F&G’s national council.

Precedents for councils established under their own acts with wide statutory powers include:

• The Alcoholic Advisory Council and its Act of 1976;
• The Arts Council of New Zealand and its Act of 1994;
• The Health Research Council and its Act of 1990.

Advantages of this proposal include:

• The ability to create a new entity through a new statute governed by a quite liberal Crown Entities Act; versus producing an uneasy fit with F&G through yet another amendment to the Conservation Act.
• Creating a totally new governance structure with room to opt for election and/or appointment and co-option within a new act; versus using only the election analogue provided for F&G.
• Power to act with more freedom outside the department administering the council’s new act; versus limited powers F&G has to act without interference or direction of the Director General of DOC and the Minister in charge of DOC.
• Freedom to establish committees by statute under clauses of a new act; versus no freedom at all for F&G. NZDA sees this advantage as being especially important to facilitate a wide range of compliance, management or policy functions under council jurisdiction.
• Much wider powers enabled under the Crown Entities Act (Sections 73-6) for a new council to delegate functions and/or to control delegations within its own act; versus no such machinery at all in the Conservation Act for F&G unless specified by the Minister of Conservation.
• Power to incorporate gift and contribution provisions of the Crown Entities Act into a new act for the council. This means gifts and contributions could be made freely to the council, unless prohibited by other laws, and this provision could be vital if fee-paying licensees, as an income stream, are not contemplated initially. No such advantage is available to F&G.
• Freedom of Council from directions from Ministers on general policy, unless such is provided for by other enactments (S104(3) Crown Entities Act); versus no such freedom for F&G which has no power to refuse direction from the Minister, whether or not it is government policy provided by enactment. NZDA is aware that many cross sectional issues such as trade assurance for farmed and wild venison, food safety standards, poisons and their effect on trade access are matters on which Ministers can give directions to their departments, but which in themselves, are not always the subjects of formal statute or solid government policy. This advantage of being able to “refuse to comply with” directions not enshrined in statute could be a handy bulwark as the council establishes itself.
• Possibility under a new act of applying for exemption from acquisitions, borrowing, securities and derivatives rules (S160(1)(d) Crown Entities Act), and for exemption of payment of the council’s net surpluses to the Crown (S165); versus no such options available for F&G.
• NZDA notes in advancing this point that F&G currently doesn’t have status independent enough to apply for such exemption under the Conservation Act. The advantage in enabling the council through a new act could be that a new council may not have the same restrictions as entities like F&G, and may keep and hold more assets and more revenues with impunity than F&G can.

The three acts which established viable statutory entities mentioned above are useful models for the game animal council establishment legislation. They are wholly more instructive and enabling than part 5A of the Conservation Act, and may deliver a more flexible and more efficient council than F&G currently is.

Models of statutes and sections of statutes we believe worthy of the Minister’s further scrutiny are listed in table 2 below.

Please note: Acts referred to as models in the table below are abbreviated as follows:

AACA - Alcoholic Advisory Council Act

ACA - Arts Council Act

HRCA - Health Research Council Act.

Table 2
Proposals and models for new game animal council establishment act.

NZDA sincerely hopes the establishment committee takes legal and policy advice from The Crown Law Office, Treasury and specialists in The Office of the Controller and Auditor General, in respect of this case for a new crown entity before preparing a view based on it for the Minister of Conservation and his Associate Minister.

NZDA believes this is a strong, well-argued case for a new entity with a more sophisticated legislative mandate than was attainable at the time F&G’s national council was established 20 years ago.

4.2 THE WILDLIFE ACT 1953

Proposals for changes to schedules and amendments to the principal act with further suggestions on supporting provisions in a new council act.

Section 3.1.2 of the ECDD contains a short discussion about changes to the classification of wild animals, which may be required if a new council is established by statute. Such changes will be achieved principally by amendment to the Wildlife Act 1953 and we fully understand that a new council act will have little influence over this separate process.

NZDA has long held concerns over the status of wild game animals valued by its members under the Wildlife Act. We welcome this opportunity to provide recommendations and suggestions on ways of improving this antiquated piece of law.

We offer our support in our answer to question 6 for the new names proposed for classes of game animals by the establishment committee. We offer the following suggestions on changes and improvements to the Wildlife Act, achievable through amendment of the same, and through innovations in a new council act which support and extend our answer.

• Schedule 6 of the Wildlife Act should be repealed entirely as well as the definition of “wild animal” in schedule 2 of the Wild Animal Control Act 1977. A new group of schedules labelled 6A to 6D should stand in its place, and may be inserted via a new wildlife amendment act. Alternatively, we believe schedule 3 could be augmented with schedules 3A to D, which would place game animals closer to indigenous species already hunted, subject to conditions imposed on a regional basis by the Minister of Conservation.
• Schedules 6A to 6D (or 3A to 3D) must be separate items in law. We would not like to see parts I to IV of one new schedule, but would prefer lettered nomenclature for different schedules to treat different classes of animals. A precedent for this nomenclature is already available in the Wildlife Act in schedules 7 and 7A.
• The suggestions in 1 and 2 would make it easy for the Governor General to apply section 8, which allows movement of animals between schedules, and inclusion and omission of animals from schedules. Such ease of application of section 8 would not be available if only one schedule with four parts was established.
• The authority for ministerial notices concerning game animals on new schedules should be derived from an amended section 6 of the Wildlife Act and supporting clauses in a new council act. It should in no way be derived from section 7A of the Wildlife Act which could be repealed altogether.
• NZDA sees problems with establishing new schedules concerning particulars of regions in which animals are managed on estates, farmed, or available for hunting. Schedule 3 of the current act is the only precedent available internally which describes “broad” regions where hunting can occur subject to conditions. The areas listed in schedule 3 are however very generic, and are not specified by maps or other detailed information. In contrast, notices under the Wild Animal Control Act (for example under section 8(4), or section 27 and following) published in the government gazette contain full particulars of locations and exclusions in respect of animal management.

We suggest:

• That a new wildlife amendment bill should contain a clause allowing the Minister to prescribe and provide adequate information to describe specific areas in respect of animals on new schedules, in particular. These could be defined according to DOC conservancy areas or management areas within conservancies, or local and regional government boundaries, or simply using the NZMS topographical mapping system which, we observe is good enough for the government gazette at present.
• That a new council bill should include a clause allowing the council to make recommendations from time to time to the Minister on regions which should be included or excluded from any one or more of the schedules. This would mean it could use current information to recommend Fallow deer could be hunted in East Waikato and also farmed there, but not kept on estates, while recommending simultaneously that Fallow in specified areas of Southland be available for hunting only. Such clauses would then allow the Minister to fully use powers he has under section 6 of the Wildlife Act to impose conditions on animal management.
• That a new wildlife bill should contain a clause requiring publication of ministerial orders pertaining to animals on the new schedules in the government gazette. This would align it with the current Wild Animal Control Act provisions.
• That the new schedule proposal will expunge the definition of “wild animal” available in section 2 of the Wild Animal Control Act. We propose this definition be repealed in total and replaced with one referring only to wild animals managed for conservation purposes. This would ensure DOC’s legal mandate across both acts would apply only to “wild animals” as described in the ECDD, not to any other animal.
• That schedule changes currently take a very long time. They are politically emotive and in recent times, have been derailed by institutional problems and differences of opinion within DOC and between it, and MAF, MFE, and other departments. These problems were most recently brought to light in the stalled wildlife schedule review of 2006 which still has not been carried to completion. This, despite numerous sweeping changes DOC’s discussion document proposed many of which were strongly objected to by sections of the public.

We would like to suggest:

• That a new wildlife amendment bill creating the new schedules and providing enabling clauses to support them be introduced to the House before, or with the new council bill. The new wildlife amendment bill should not be introduced “after” the council bill as potential for derailment of new schedule proposals and changes may leave the council with no animals to manage.
• That a new wildlife bill should empower the Governor General on ministerial advisement to establish the new schedules and transfer animals to them in one fell swoop, not by several small orders in council. The latter is what usually happens and has been the focus of much debate about wasted time and resources, political interference etc, in the past.
• That the new council bill should include a part specifically relating to the council’s interaction with the Minister in respect of schedules and advising on schedule changes, additions, or omissions of animals, and/or regions. This part could include clauses allowing the council to make recommendations at regular intervals or simply from time to time. It should enable special public consultation provisions which the council could use after consulting the Minister and any other affected Ministers, and clauses setting out criteria for using consultation provisions when proposing changes to schedules.
• That a new council bill should contain provisions enabling the council to assist the Minister to facilitate recreational opportunities for hunters in respect of animals managed for conservation purposes only. Ideally clauses could empower the council to make proposals in respect of these animals and then allow the Minister to authorise hunting activity by permit in special conservation areas like the Murchisons or Secretary Island.
• That a new wildlife amendment bill should contain corresponding clauses, allowing the Minister to implement plans for recreational hunting in areas where animals are being managed for conservation purposes only. This would not be difficult and would give full effect to the proposal in the ECDD in law, rather than in often clumsy regulation such as we have now.

4.3 OTHER MATTERS IN RESPECT OF LEGISLATIVE DRAFTING

NZDA fully understands that this process is designed so submitters can provide the committee with views which may inform the establishment of a council, rather than direct the council itself. We also appreciate and have responded to the challenges posed by the drafting and scrutiny of one or more bills, which will be required to erect and protect the authority of the council.

Yet, where submissions processes are public, the drafting of laws in New Zealand is not. NZDA accepts that this is the time to provide its view on what should appear in any new bill(s), and how different matters should be treated by advisors and drafters. We may not have any formal opportunity to interact with those engaged in drafting and offer the following views for their benefit, as well as for the committee’s benefit.

NZDA wants to see a substantial section on principles which guide the new council’s strategic and operational interactions in new legislation. We would expect a new bill to include objects, purposes, and especially principles upholding:

• The fostering of trust and cooperation between the council and regional stakeholders and hunters;
• The fostering of sustainable and mutually beneficial partnerships between regional hunting groups who currently manage herds and hunters, and the council;
• The fostering and enhancement of, participation in hunting and related outdoor activities;
• The fostering of access rights for all hunters, irrespective of their social status or personal financial position;
• Encouragement of safe use of the game resource by hunters and encouragement of promotion of safe use of the resource by game farmers and managers;
• Enhancement of the wild game animal resource for purposes of sustainability in areas where such can be realistically achieved;
• The fostering of mediation and negotiation between parties as means of resolving conflict;
• Promotion of the wild game resources of New Zealand as legitimate, desirable and unique parts of our heritage.

NZDA would especially like to see provisions in a new council bill which clearly guide the production of game animal management plans. We have concerns that previous regulations and attempts at law reform have allowed game farmers and estate owners to capitalize on the quality of the wild game resource through live capture operations, in order to sustain and improve their own stock. We are also concerned that feral ranges should be protected as they are and not altered, to an extent where game animals may induce conflicts between land owners and hunters as they currently do occasionally because of range extension and illegal releases. We would expect any part of the founding legislation dealing with management plans to be at least as comprehensive as sections in part 3A of the Conservation Act, and to permit plans similar to those generated from this statute.

NZDA wants to see sections in a new council bill which establish compliance and law enforcement, and a law enforcement liaison function and attendant powers within the new council. We cite part 5A of the Conservation Act as a useful parallel and in this matter at least, we agree that F&G’s model may be a useful one to follow. Such inclusions would necessarily require consequential amendment of the Wild Animal Control Act, the Reserves Act, and the National Parks Act, which is long overdue in our view.

These suggestions are deliberately generic, but we are happy to provide more detail as in other addenda in this submission if the committee invites further submissions.

Finally, we want to publicly affirm our support in principal for the new proposal, having full regard to all our recommendations, advice, and suggestions.

We look forward to working with the establishment committee, the Minister and his Associate Minister, to consolidate and advance this proposal in the near future.