The Obligation to Protect and Preserve 

BRONWEN GOLDER (Fellow with the Stanford University Centre for Ocean Solutions and Global Lead for the Seamount and Vulnerable Marine Areas campaign of the Deep Sea Conservation Coalition 

In 1982 the United Nations Convention on the Law of the Sea (UNCLOS) gave New Zealand the right to extract and exploit marine resources out to 200 nautical miles from our coast line. UNCLOS also obligated New Zealand to preserve and protect that territory - an area 15 times the size of New Zealand’s land area and 8% of the planet surface. Forty years later, in December 2022, the New Zealand Government signed up to another ambitious and far reaching United Nations agreement; the Global Biodiversity Framework 2030. It commits New Zealand to protecting 30% of the marine and coastal environment by 2030. Yet, despite those commitments, and in a context of a growing list of global action on marine protection, the extent of New Zealand’s ocean territory in fully or highly protected marine areas sits today at 0.4%. The disconnect between commitment and action evidenced by that percentage has defined New Zealand ocean policy and politics for decades, a period of our history strewn with failed marine legislation and marine protection proposals. That our Marine Reserves Act, the only dedicated marine protection piece of legislation on New Zealand Parliamentary books, is now over 50 years old reinforces just how far behind the rest of the world we have fallen. Why that is, and how it might be turned around is complex. It is also urgent and requires that New Zealand honour the commitment it made to the United Nations in 1982: To meet the obligation to preserve and protect the ocean territory over which it has been made guardian, for all global citizens. 

In December 2022 the 196 nations that are Parties to the United Nations Convention on Biological Diversity (CBD) came together in Montreal to negotiate 23 targets of the Kunming-Montreal Global Biodiversity Framework 2030 (GBF). Target 3 of the Framework reads: 

The significant ambition of the 2030 GBF did not emerge from nowhere. It is the successor to the CBD Aichi 2020 targets, which had a 10% by 2020 protection target for marine and coastal areas, and a partner to the UN Sustainable Development Goal #14 (Life Below the Water)(2), which includes protection of the marine and coastal environment. 

For those who have participated in the evolution of ocean conservation goals and targets since the UN Convention on the Law of the Sea (UNCLOS) set out the obligation of UN members to ‘protect and preserve’ the marine environment, the GBF 2030 targets represent a level of ambition that is necessary and urgent. While previous targets – like Aichi – were not met (the current level of fully or highly protected areas across the global ocean is 2.9%, while a more relaxed counting of ‘protection’ has the marine ecosystem at 8.2% protection(3), all available data indicates that 30% is probably the minimum level of protection needed to keep the global ocean healthy and productive for future generations. The growing understanding of the impact of climate change, fishing and pollution on the marine environment, and the implications of those impacts on the lifestyles and livelihoods of millions of people around the world, makes the protection of 30% of the marine environment a well understood collective responsibility and obligation. 

For those who have doubts, the UN Sustainable Development Goals Report of 2022 provides some stark points of reference: 

• Continuing ocean acidification and rising ocean temperatures are threatening marine ecosystems. Between 2009 and 2018 the world lost 14% of its coral reefs. 

• In 2021 17 million metric tons of plastic entered the world’s ocean, a volume that is expected to double, or even triple by 2040. 

• 35.4% of global fish stocks are over fished. 

On signing UNCLOS in 1982 Aotearoa New Zealand became guardians of an additional 4.3 million sq km of ocean territory, the 4th largest ocean territory in the world. This was the result of our national boundary being extended out from 12nm to 200nm, from the Kermadec Islands in the north to the sub-antarctic islands to the south. Marine scientists estimate that as much as 80% of New Zealand’s indigenous biodiversity is found within the marine region over which we now have ‘sovereign rights’. Those rights – to explore, exploit, conserve and manage the natural resources of the seabed, subsoil and waters above it – are a considerable windfall for a small nation. Alongside the exclusive right to explore and extract, UNCLOS also assigned New Zealand (and other signatories) the obligation to protect and preserve our new marine environment for all States (Article 192). Since signing UNCLOS, consecutive New Zealand governments have put a lot of energy into realising the rights and benefits of exclusive exploitation (e.g. the Quota Management System, the Fisheries Settlement, EEZ [Exclusive Economic Zone] Act, mineral exploration etc.). Disappointingly, the obligation to preserve and protect has been set aside for another day by a succession of governments. 

To date, New Zealand has only put 0.4% of its marine territory into fully or highly protected areas. Our single piece of dedicated marine protection legislation (Marine Reserves Act) was passed in 1971. Because it pre-dates UNCLOS it only applies to our territorial sea (out to 12nm). Since 2000, multiple attempts to introduce new marine protection legislation (e.g. Hon Sandra Lee’s Marine Reserves Bill in 2002 and Hon Nick Smith’s MPA consultation in 2015) and numerous proposals for marine protected areas (e.g. Kermadec Rangitāhua Sanctuary, SE Marine Network, Hauraki Gulf Seachange) have been rejected or stalled for +10 years by Parliament and various combinations of opposition (political, iwi, industry and recreational fishing community). Despite a growing body of scientific research and data(4)(5)(6) and a growing portfolio of international commitment to marine protection(7), New Zealand has hardly moved. For over 40 years. Worse than that, any ambition to catch up with the rest of the world is not evident in the international engagement, domestic policy commitments, or of successive New Zealand governments. 

That absence of commitment to ocean action is also evident in New Zealand’s climate change discourse. Focused on emissions and agriculture, New Zealand’s climate positioning continues to exclude substantive ocean reference points or programmes of action. 

I attended the first COP to the UN Framework Convention on Climate Change in Berlin in 1995. At that time, rather like in New Zealand today, the ocean was not being discussed. By COP 25 in Madrid, Spain in 2019 the ocean was a significant area of focus for participating nations, scientists, and NGOs. As a result, an ongoing ocean dialogue was mandated. In Glasgow (COP 26) the ocean/climate dialogue report from Madrid was received and an annual dialogue “to consider how to strengthen ocean-based action on climate change” agreed. A year later at Sharm El Sheikh (COP27) nations agreed to have a dedicated Ocean Dialogue, co-facilitated by Parties biennially. 

Why is this important for New Zealand? We need look no further than an article published in the Guardian on May 13, 2023, setting out the impact marine heat-waves are already having on our marine territory(8). Beyond the concern of our scientists for the health & productivity of habitats and species highlighted in the article, you have to wonder why the broader degradation of the ocean by climate change isn’t driving a national conversation about ocean protection and resilience. 

If you Google ‘why is the ocean important’ a very long list of links to UN and NGO websites and documents will tell you the same thing. The ocean covers 70% of the planet surface. It feeds us. It regulates the climate. And it generates the majority of oxygen that we breathe. If its ability to perform those functions is diminished - as a result of ocean acidification, sea level rise, species extinction, and habitat degradation - then the lifestyles and livelihoods of global citizens who depend on the marine environment for food, income or health – will be impacted. Not slightly, or peripherally. But significantly. 

The frequency and intensity of storms and the diminished health of biodiversity are already being seen across the Hauraki Gulf. In other geographies where those climate driven impacts are being seen and felt, the response has been to embrace known mitigation tools. Fully and highly marine protected areas (of at least 100 sq km), and large scale restoration programmes, are recognised for their ability to build climate resilience through the elimination of non-climate stressors, protection of blue carbon habitats and provision of sanctuary for species and habitats in damaging climate conditions(9). And yet across the Hauraki Gulf, and the broader New Zealand marine territory, movement on marine protection and restoration remain stranded in 1971. Ironically, the New Zealand fishing community’s opposition to marine protected areas continues to ignore the importance and urgency of building resilience to their livelihood and lifestyle pursuits. 

New Zealand’s failure to progress marine protection and explicit ocean-climate policy is a frustration for many ocean advocates, not least because the narrative of domestic opposition is out of date. As an advocate for marine protection in New Zealand I am used to hearing that marine protected areas (MPAs) will “lock up” resources and “deny the rights” of iwi and fishers. That line of opposition is based on the 1971 Marine Reserves Act, a piece of legislation conceived at a time when marine protection meant excluding all parties and interests from the marine environment. In using that 50+ year old reference point, those opposing MPAs fail to acknowledge the more recent (2018) MPA criteria and standards produced by the International Union for Conservation of Nature (IUCN). Those standards, which scientists, governments and policy makers from around the world contributed to, recognise within the hierarchy of marine protection the rights and interests of indigenous peoples (just as the 2022 CBD Global Biodiversity Framework does). Customary take is possible within highly protected marine areas, and recreational activity is possible (within limits) in lesser protected areas. What isn’t considered protection across all MPAs categories is commercial fishing, or the protection of a single species or a single habitat – like the proposed trawl corridors in the Hauraki Gulf. They are all considered inconsistent with the conservation objectives of an MPA. This modern view of marine protection is sadly absent from New Zealand policy and legislation, not least because there is still no protection of our marine territory beyond 12 nautical miles (and no, I cannot be convinced that Benthic Protection Areas or trawl corridors are MPAs). 

New Zealand also has no process by which rāhui, a customary designation being used by iwi across the Hauraki Gulf, can be recognised as marine protection. Currently rāhui sits squarely in the fisheries management section of New Zealand policy and regulation, is administered by the Minister of Fisheries, and defined by fisheries criteria. To be recognised as a marine protection tool the values, principles and governance of rāhui need to be transferred across to, and elevated within, a framework for marine conservation that aligns customary approaches to ocean guardianship with modern protection standards – just as Canada, Chile and Pacific States are within their ocean policy. 

There are many in the international community who ask how it is that New Zealand is so far behind the global commitment to increase marine protection and restoration. We are known internationally as an open, liberal democracy, committed to recognising indigenous rights and interests alongside a ‘clean green’ brand. Our politicians and diplomats have spoken eloquently about the importance of our marine territory for generations, and our leadership in United Nations negotiations – from Law of the Sea to Fish Stocks and the recent High Seas Treaty – is recognised and respected. But when it comes to marine protection and the climate/ocean dialogue we are seen as languishing, unmoved from the pre UNCLOS world for more than a generation. 

I have frequently asked myself that question over recent years. The stalling of the Kermadec Rangitāhua Ocean Sanctuary, the SE Marine Network and Sea Change/Revitalising our Gulf – has left me concerned for the future of our marine environment. It is no exaggeration to say that the future of New Zealand’s fishing industry, and New Zealanders’ recreational enjoyment of the marine environment will depend on the protection of at least 30% of our ocean territory by 2030. Without that protection habitats and species will be lost, and with them livelihoods and lifestyles, and guardianship over a diminished and dying ocean will be the legacy we leave our grandchildren. 

Beyond New Zealand’s shores, the UN’s agencies, governments, and civil society are moving to honour their UNCLOS obligation to protect and preserve the ocean. Over the past 12 months significant new global ocean commitments have been agreed. The need for urgency has been recognised. The call for action has been heard. Except in New Zealand, where bottom trawling is still allowed on seamounts and other vulnerable marine areas; where commercial and recreational fishers continue to argue that we can leave the future health and productivity of our ocean environment in their hands; and where consecutive governments have failed to progress any meaningful ocean protection & restoration agenda for fifty years. 

The international ocean agenda is showing us that there are alternatives to inaction. Across the Pacific region Australia, Chile, Canada, the United States, Ecuador, Niue, Fiji, and Palau are showing the way with large scale marine protection, restoration, and ocean/climate leadership. 

It is time for New Zealand to join them. 

Having been made guardians of the 4th largest marine territory in the world, it is time to honour our obligation to the United Nations community: To Protect and Preserve. 

Bronwen Golder is a Fellow with the Stanford University Centre for Ocean Solutions & Global Lead for the Seamount & Vulnerable Marine Areas campaign of the Deep Sea Conservation Coalition. She advises The Pew Charitable Trusts, WWF and a number of New Zealand ocean advocacy organisations. Between 2010 and 2018 she led the campaign for designation of the Kermadec Rangitāhua Ocean Sanctuary, a globally significant marine protection designation that she continues to support through engagement with mana whenua, scientists and NGOs. 

References:

1. https://www.cbd.int/article/cop15-final-text-kunming-montreal-gbf-221222 

2. https://sdgs.un.org/goals/goal14 

3. https://mpatlas.org 

4. https://www.yumpu.com/en/document/view/37729877/wwf-shining-a-spotlight-on-the-biodiversity-of-marinenzorgnz 

5. https://www.pewtrusts.org/-/media/post-launch-images/2014/kermadecs/assets/kermadec_symposium_aug_2010_ proceedings.pdf 

6. https://www.aucklandcouncil.govt.nz/about-auckland-council/how-auckland-council-works/harbour-forums/ docsstateofgulf/state-gulf-full-report.pdf 

7. https://www.hacfornatureandpeople.org/home 

8. https://www.theguardian.com/environment/ng-interactive/2023/may/13/are-new-zealands-marine-heatwaves-a-warning-to-the-world 

9. https://marineprotectedareas.noaa.gov/sciencestewardship/climatechangeimpacts/