The Lord of the Rings and Vertical Limits Film

Concessions and the Conservation Act 1987

Butterworths Resource Management Bulletin (May 2002) 4(11): 125-
129

In this article Simon Johnson further examines the process of

approval of concessions under the Conservation Act 1987. He
focuses on the recent high profile film concessions, the Lord of the
Rings and Vertical Limits. He describes further examples of
unsatisfactory performance of the statutory tests applied by the
Department of Conservation, and concludes that consideration of
conservation purposes, consistence with management plans and
public notification are incorrectly subsumed under consideration of
effects and mitigation. Simon Johnson is a compliance-monitoring
officer with Environment Canterbury.

Introduction
Peter Jackson’s film adaptation of JRR Tolkien’s fantasy trilogy “The
Lord of the Rings” (“LOTR”) was announced in 1999. 1
Media coverage
appears to have reached saturation point since then. Attention has
focused on the film’s depiction of New Zealand landscapes in
conservation areas.2 Similar comments were made about “Vertical
Limit” (“VL”); a climbing thriller set in the Karakoram and filmed in
conservation areas in New Zealand’s Southern Alps. 3
Both films were
concessions approved by Department of Conservation (“DOC”) staff
under powers delegated from the Minister of Conservation (“the
Minister”) pursuant to the concession approval process in Part IIIB, s
17O to s 17ZJ of the Conservation Act 1987 (“CA”). 4
This process has
been described in a paper which concluded that several statutory tests

1
Wingnut Films, Wingnut Films announces Lord of the Rings. Press Release, 24 August
1999.
2
New Zealand Government, Lord of the Rings to film on conservation land. Press Release,
11 November 1999.
3
DOC, Vertical Limit filming monitored. Press Release, 31 July 1999.
4
DoC In this paper a reference to the Minister means the DOC employee acting as the
Minister’s delegate.
are sometimes not adequately performed by DOC. 5
This analysis of
the film concessions confirms this view. In the film concessions, DOC
has treated statutory tests concerning effects and mitigation as
outweighing the tests concerning consistence with conservation
purposes and conservation management strategies (“CMS”). This is
not correct as the consistence tests have a technical knockout wording
requiring the Minister to decline applications that are inconsistent. A
further concern is that the film concession applications were not
publicly notified. In the following paragraphs I firstly describe the
scope of the film concessions then discuss how the concession reports
dealt with conservation purposes, conservation management plans
and public notification.

The film concessions

The LOTR was filmed in several regions of New Zealand. Applications
for filming in a number of sites were granted in five DOC
conservancies. These conservancies, and some details of the filming
are listed:
1. Southland, 12 sites including Kepler Mire, the Mavora Lakes; Lake
Manapouri and Mount Titiroa in Fiordland National Park, with a
maximum of 50 extras, 150 crew, and 40 trucks at North Mavora
Lake. 6

2. Otago, 12 sites mainly conservation areas in the Queenstown area. 7

3. Nelson/Marlborough, helicopter landings and 20 crew at 2 sites at

Castle Basin and Bulmer Valley Ridge, Mount Owen, Kahurangi
National Park 8

4. Wellington, 1 site at Putangirua Scenic Reserve. 9

5. Tongariro/Taupo, 5 sites within Tongariro National Park, battle

scenes involving horses, helicopters, off road access for unimog
5
Johnson, S. and Lloyd, K. (2002). Environmental assessment of concessions for tourism
and commercial activities under the Conservation Act 1987. 4 BRMB 9:100-105.
6
DOC (Southland Conservancy), Concession Application: Three Foot Six Limited Filming
Permit “Lord of the Rings”. 3 November 1999. Te Anau.
7
DOC (Wakatipu Area Office), Non-notified Application for a Concession by: Three Foot
Six Limited, 31 November 1999. Queenstown.
8
DOC (Nelson/Marlborough Conservancy), Filming Application: Three Foot Six Limited Final
Report. 11 October 1999. Nelson.
9
DOC (Wellington Conservancy), Non-notified Application for a Variation to a National
Concession by: Three Foot Six Limited. 19 February 2001. Wellington.
 trucks and film unit trucks and other vehicles, crew of up to 180, up
to 350 extras, structures, camps, toilets and special effects. 10

The Vertical Limit was filmed in and approved for two conservancies:
1. Canterbury, 16 sites in Aoraki/Mount Cook National Park involving
extensive use of helicopters and structures above the snowline. 11

2. Otago, 2 sites, Turret Head (pastoral lease next to Mount Aspiring

National Park) on Mount Earnslaw and Remarkable Conservation
Area/ Rastus Burn Recreation Area. 12

The film concessions provide a sample of seven separate concession

reports covering a large range of activities at multiple sites over a
wide range of conservation areas and management plans. As such,
they should give a good indication of how well DOC is applying the
concession approval process nation-wide.

Consistence with conservation purposes

The statutory tests requiring concessions to be consistent with
conservation purposes are s 17U(3) of the CA and s 49(2)(b) of the
National Parks Act 1980 (“NPA”). However these tests have not been
adequately performed in the film concessions. DOC has treated these
tests as having been resolved with the consideration of effects and
mitigation. The Otago VL report explicitly does this for its s 17U(3) test
by repeating the conclusion that the effects are minimal and that
filming is permitted by the Otago CMS (p7). The Southland LOTR report
has 20 pages of discussion of effects and mitigation and considers the
two tests with a one-sentence conclusion that the proposed activity is
not inconsistent with the purpose for which the land is held. 13
This is
not supported by any other arguments. The same situation applies for
the Otago LOTR report (p 6), the Wellington LOTR report (p 8), and the

10
DOC (Tongariro/Taupo Conservancy), Application for a Concession by: Three Foot Six
Limited (Lord of the Rings) 7 March 2000. Turangi.
11
DOC (Canterbury Conservancy), Application for a Concession by the Vertical Limit:
Aoraki/Mount Cook National Park. 22 June 1999. Christchurch.
12
DOC (Southern Regional Office) Application for a Concession by the Vertical Limit: Mount
Aspiring National Park, Rastus Burn Recreation Reserve, Remarkables Conservation Area. 11
June 1999.
13
DOC, supra note 2. See pages 3 to 22 for effects, see page 26 for consistence with
purpose, s 17U(3) CA.
Canterbury VL report (p 12). The Nelson/Marlborough LOTR report, a
brief 5 pages, does not mention the s 17U(3) test or the s 49(2)(b) test
at all. The Tongariro/Taupo LOTR report refers the reader to the s 17W
management plan section of the report for the conclusion for the s
17U(3) and s 49(2)(b) tests as the park is managed subject to a
management plan (p 20).

A plain reading of the legislation does not support these

interpretations. The tests for consistence with conservation purposes
are separate from the effects and mitigation tests, s 17U(1)(b) and s
17U(2)(a) & (b) of the CA, and need to be considered separately on
their merits. The ‘consistence with purpose’ tests have a stronger
injunction on the Minister as they allow the technical knockout of
concession applications irrespective of other considerations.14 The
Minister “shall not grant applications” contrary to the purpose for
which the land is held, whereas the Minister “shall have regard to” the
effects under s 17U(1)(b). The Minister’s consideration of s 17U(3)
should follow Buller Electricity Ltd v Attorney-General [1995] 3 NZLR
344. The plaintiff unsuccessfully argued that as the permitted
purposes for land disposal were left unspecified the Minister could
dispose of a stewardship area for the social and economic purpose of
facilitating the plaintiff’s hydroelectric scheme at Ngakawau. Doogue J
held that the Minister must uphold only conservation purposes and
that social and economic purposes are irrelevant considerations. Buller
Electricity Ltd was accepted as applying to concession applications in
Franz Josef Glacier Guides Ltd & Anor v Minister of Conservation.
Panckhurst J, HC Greymouth, CP 14-98, 13 October 1999. If anything, s
17U(3) and s 49(2)(b) provide a stronger statutory direction to the
Minister’s consideration than Buller Electricity Ltd as they explicitly
state the permitted purposes for concession applications within the
parts of the two acts dealing with concessions.

14
Johnson, S. and Lloyd, K., supra page 101-102.
Tongariro National Park - consistence with conservation
purpose
In the Tongariro/Taupo LOTR report Three Foot Six Limited
acknowledged that the filming of fantasy battle scenes is not an
activity that normally occurs in the park but they argued that as the
effects will be minimal the filming will not be inconsistent with the
image and standing of the park (p 27). Further, Three Foot Six Limited
claimed the filming would bring significant national and regional
benefits in terms of spending on regional infrastructure and attracting
tourism. Again, following Buller Electricity Ltd, these are irrelevant
considerations.

Also the effects of filming a large cast within the Tongariro National
Park were of concern to the Tongariro/Taupo Conservation Board and
many DOC staff. Ngati Rangi and Ngati Tuwharetoa did not support the
proposal. The Tongariro/Taupo Conservator considered that
commercial filming provides no direct recreational benefit to users of
Tongariro National Park. 15
In spite of these concerns the
Tongariro/Taupo report did not separately consider s 49(2)(b) NPA.

Consistence with management plans

DOC is required by s 17W and s 17T(2) of the CA to grant only
concession activities that are consistent with conservation
management strategies and plans, whether or not the activity has
been provided for.16 In the LOTR film concessions there are three types
of inadequate performance of this requirement.
1. Authorisation of prohibited activities.
2. Confusing ‘provided for’ and ‘consistent with’.
3. Failing to take into account the significance given to an area by a
plan.
The common element is that consistence with management plans was
treated as being subject to the mitigation of effects.

15
DOC (Tongariro/Taupo Conservancy). Lord of the Rings - Application to film in Tongariro
National Park. Conservators Report. Green, P. 7 March 2000.
16
Johnson, S. and Lloyd, K., supra page 103.
Authorisation of prohibited activities
The Mainland Southland- West Otago conservation management
strategy specifically prohibits motorised boats on South Mavora Lake.
In spite of this prohibition Three Foot Six Limited were permitted to
have a motorboat on South Mavora Lake. Forest and Bird and the
Southland Conservation Board both objected to this but their concerns
were considered to be resolved by adding special mitigating
conditions.

DOC Tongariro/Taupo approved one activity considered to be

prohibited by the management plan. The use of film vehicles off
formed and maintained roads was approved, in spite of the specific
prohibition in the plan, as the applicant had proposed sufficient
measures to mitigate the effects (p 31).

Comment
The Tongariro/Taupo Conservation Board were unequivocal about the
status of management plans:
“The Board is committed to supporting the integrity of this plan
which was developed and approved after a statutory process
involving significant public input. It cannot be overridden” (p 17).

There is no statutory authority for DOC to allow an activity prohibited

by or inconsistent with a conservation management strategy. Indeed, s
17W(7) makes it a condition of every concession document that the
concessionaire will act in accordance with the relevant conservation
management strategy. DOC cannot authorise non-compliance with a
conservation management strategy as s 17W(8) states that any
provision of a concession document that contravenes a conservation
management strategy shall have no effect. The approval of prohibited
activities was simply unlawful.

Confusing ‘provided for’ and ‘consistent with’

The Tongariro National Park management plan provides for
‘promotional or commercial activities’ such as filming. A policy
statement allows such activities consistent with the image and
standing of a national park. The implementation statement has the
provisos that the activity being filmed should be an activity that
normally occurs in the park or is permitted by this management plan
and that it is consistent with all other policies of the plan.

The Tongariro/Taupo report considered the LOTR application as a

whole not entirely consistent with the Tongariro National Park
management plan (page 21). Three Foot Six Limited was asked to
comment. They admitted that the activity of filming fantasy battle
scenes is not an activity that normally occurs in the park and is not
generally permitted by the management plan (p 27). They argued that
if it is debatable whether the activity is provided for by the
management plan then s 17W(2) allows the Minister to grant a
concession for such an activity after mitigating the effects under s 17S,
17T and s 17U (p 28, Para 4.4). Therefore, as the application does
mitigate the effects, DOC should approve it.
DOC Tongariro/Taupo appear to have accepted this argument. The
Tongariro/Taupo report considered whether the effects could be
sufficiently mitigated of the five specific activities proposed by Three
Foot Six Limited that were considered to be prohibited by or
inconsistent with the management plan. These were:
1. the use of helicopters,
2. the use of horses,
3. use of the Mangaturuturu wilderness area,
4. the use of film vehicles off formed and maintained roads,
5. the filming involving large numbers of extras and crew in the Happy
Valley area.

The first three were declined as they could not be mitigated (p 28,
Para 4.5). In spite of the clear prohibition on the use of helicopters
Three Foot Six Limited applied to Sandra Lee for reconsideration of this
decision under s 17ZJ of the CA. 17
To her credit Sandra Lee upheld the
decision and commented that the legislative framework of the CA

17
New Zealand Government. Lord of the Rings permitted to film within Tongariro National
Park. Press Release, Hon Sandra Lee, 24 March 2000.
meant that no other decision was possible. The last two activities were
approved, as the mitigation measures were considered adequate.

Comment
Three Foot Six Limited proposed and DOC accepted a ‘heads we win,
tails you lose argument’. Filming within Tongariro National Park is
provided for in the plan. The requirements that filming must be
consistent with are clearly stated. The filming must be an activity
normally undertaken in the park, it must be consistent with the image
and standing of the park and it must be consistent with all other
policies (no horses, helicopters, or vehicles off roads). Even if filming a
fantasy battle sequence is not specifically provided for, the issue does
not reduce to mitigation of effects as claimed. Section 17T(2) requires
DOC to decline any application for an activity that is inconsistent with
a conservation management strategy or a management plan,
irrespective of whether the activity has been provided for or not. The
LOTR filming activities were not consistent with the management plan
and there is no statutory basis for DOC to approve activities that are
inconsistent with a management plan on the grounds that the effects
are adequately mitigated.

Failing to take into account the significance given to an area by

a plan -the Kepler Mire
The Southland report approved filming with boats, up to 20 helicopter
landings and 25 crew, in a conservation area of high ecological
significance and sensitivity, the Kepler Mire. This is a 560-hectare
wetland some 15 km south of Te Anau and 5 km east of Lake
Manapouri protected as conservation land. It is of international
significance as it is the most extensive pool system of the string bog
type in New Zealand. 18
String bogs are usually found in the Northern
Hemisphere. The significance and sensitivity to trampling are noted in
the Mainland Southland - West Otago conservation management
strategy. The Southland report considered that filming was consistent

18
Burrows, C. J and Dobson, A. T. (1972). Mires of the Manapouri - Te Anau Lowlands.
Proc. NZ Ecol. Soc. 19:75-99. For a photograph of Kepler Mire see
http://www.ipcc.ie/pwnewzland06.GIF.
with the strategy as the potential effects to the wetland could be
sufficiently avoided or minimised (p 29).

Comment
The Southland strategy clearly documents the high ecological
significance and sensitivity of the Kepler Mire. This significance should
have set the context for the assessment of the significance of effects
and the consideration of consistence with the strategy. The potential
effects of 25 crew and boats and helicopters cannot logically be
regarded as minor and mitigated given the international ecological
significance and high sensitivity of the mire. The potential adverse
effects should have been assessed as significant. The application to
film on the Kepler Mire should have been declined.

Consultation and public notification

Public notification of concession applications is provided for in s 17T(4)
and (5) of the CA. Leases and licences must be notified unless they are
being renewed (s 17T(4)). For film permits (and easements) the
Minister may, if it is considered appropriate having regard to the
effects, give public notice of the intention to grant the application (s
17T(5)). If the concession application is notified, a notification period of
40 working days is required under s 49(2)(b) of the CA and
submissions may be filed in that time period. Submitters may request
a hearing under s 49(2)(c). The submissions then become a further
matter the Minister shall have regard to under s 17U(1)(f).

None of the seven film concession applications were publicly notified.

For the two VL reports no public notification was deemed necessary. In
two applications (Nelson/Marlborough and Wellington LOTR) the reason
given for non-notification was that the effects were minor and
temporary. The Otago LOTR report stated that notification was not
required as the application was for a low impact activity. The
Southland LOTR report concluded that given the mitigation measures
and the consultation undertaken public notification was not necessary.
The Southland and Tongariro/Taupo LOTR reports show that DOC
consulted Forest and Bird, Fish and Game, the relevant conservation
boards and iwi. This consultation was used as a justification for non-
notification. The consideration of the concerns expressed by these
groups involved no more than adding conditions to avoid or mitigate
adverse effects. That was also the response to Forest and Bird pointing
out that it was unlawful to allow a motorised boat in South Lake
Mavora when this was prohibited under the Mainland Southland - West
Otago CMS.

The Tongariro/Taupo LOTR report stated that notification was not

required, as a representative view of public opinion had been
obtained. The Tongariro/Taupo Conservation Board thought otherwise:

“The application, on its face, demonstrates significant effects and

potential effects, rather more than some leases and licences for
which notification is mandatory.” (p 16)

Further the board described the process as fast-tracked and pointed

out that consultation with the Board and within the conservancy, which
would be done in any case, was no substitute for public notification. It
is hard to disagree with their conclusion that the described effects
were prima facie significant and that public notification was
appropriate. The Minister is required, in deciding to notify an
application under s 17T(5), to consider effects, not effects and
mitigation measures. DOC appears to be interpreting s 17T(5) as if
“effects” read “effects and mitigation measures” in deciding not to
notify the film concession applications. DOC’s interpretation of s
17T(5) and its action in not notifying the film concessions is in contrast
with the intention of the Parliamentary select committee which
prepared the legislation. They considered public consultation to be an
essential part of the process.19

19
New Zealand House of Representatives. Conservation Amendment Bill (No. 2). Report of
the Planning and Development Committee (1995), Wellington. P 11.
Is the concession appropriate?
The Minister has the discretion under s 17T(3) of the CA to decline a
concession application where it is inappropriate. 20 This statutory test is
not specifically addressed in any of the seven film concession reports.
It is hard to see how the potentially damaging use of an ecologically
sensitive area of international significance such as the Kepler Mire for
filming a fantasy film could be considered appropriate. The same
comment applies to the use of Tongariro National Park given the
opposition of the Tongariro/Taupo Conservation Board, the lack of
support from Ngati Rangi and Ngati Tuwharetoa and the concerns of
many DOC staff.

Conclusion
Vertical Limits and the Lord of the Rings have been perhaps the most
significant and high profile concessions for commercial use of
conservation areas approved to date. In the seven reports approving
the film concession permits all the other important statutory
considerations, consistence with CMS and plans, consistence with
conservation purposes and the public notification process, have been
reduced to a consideration of whether the effects have been
adequately mitigated. Two specific activities prohibited by a CMS or
management plan, the use of motor boats in South Mavora Lake and
the use of film vehicles off formed roads in Tongariro National Park,
were unlawfully approved as their effects were regarded as mitigated.
Three specific activities prohibited by a management plan, use of
horses, use of helicopters and use of the Mangaturuturu area, were
only declined after mitigation measures had been discounted. There is
barely any evidence that DOC was making any serious effort to
consider whether the film activities were consistent with the
conservation purposes of the areas applied for. It appears that DOC
was motivated by the irrelevant purpose of facilitating films instead of
upholding conservation purposes as required by both the CA and the
NPA. Filming of a fantasy film was considered consistent with the
conservation of the Kepler Mire, a wetland of international ecological

20
Johnson, S. and Lloyd, K., supra page 103.
significance, in spite of that significance and its fragility being clearly
noted in the Mainland Southland - West Otago CMS.

In all the applications the effects, on their face, justified public

notification. Yet, contrary to the wording of s 17T(5) of the CA, these
effects were in all cases regarded as adequately mitigated to allow
non-notified approval. Conservation boards and NGOs and iwi were
consulted, within very short time frames, about some of the
applications, but their concerns were always considered to be
adequately dealt with by mitigation measures.

DOC has inverted the relationship of the effects and mitigation

considerations to the other more conservation-oriented considerations.
Instead of using public notification and consistence with conservation
purposes and with CMS to evaluate the significance of effects, the
subjective consideration of effects and mitigation by DOC officials are
being used to evaluate the need for notification and consistence with
CMS and conservation purposes. This is not the correct interpretation
of the legislation as the statutory tests for consistence have a
technical knockout wording. It is also contrary to environmental impact
assessment methodology. The result has been a failure to uphold
conservation purposes and a misplaced facilitation of the use of
conservation areas by commercial interests contrary to the Buller
Electricity principle. The fact that all the seven film concessions suffer
from these deficiencies indicates that these problems are likely to be
symptomatic of all DOC’s concession approvals.