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Proposed National Policy Statement on Indigenous Biodiversity: Section 32 Evaluation

Preface

Proposed National Policy Statement on Indigenous Biodiversity

Executive summary

1 Introduction

2 The status quo

3 Situaion under the status quo

4 What are we trying to achieve?

5 Alternatives to the status quo

6 Is the proposed objective appropriate in achieving the purpose of the Act?

7 Will the policies be effective and efficient in achieving the objective?

Conclusions

Appendix 1: Section 32

Appendix 2: Tools and databases

Appendix 3: Location of threatened species

Appendix 4: How to make a submission

7 Will the policies be effective and efficient in achieving the objective?

The proposed NPS includes seven policies. This chapter evaluates these policies in accordance with the requirements of section 32(3)(b) of the RMA, which states they must be assessed to determine whether each will achieve the proposed objective in an efficient and effective manner.

Section 32 guidance notes on the Quality Planning website³⁸ explain how the terms ‘efficiency’ and ‘effectiveness’ should be understood for the purposes of evaluating the proposed policies. This guidance is set out in the following sub-chapters and underpins the evaluation of the policies in the remainder of this chapter.

7.1   Assessing effectiveness

The Quality Planning guidance says that: effectiveness – means how successful a particular option is/will be in achieving the stated objective. How successful an option is can be measured in terms of not just whether an objective will be achieved outright; but it may alternatively relate to the extent to which progress will be made even if the objective won’t be met in full. The speed at which progress is made may also be a relevant consideration.³⁹

The guidance goes on to say that this means asking which approach will best achieve the objective of the proposed NPS, which in turns requires understanding of how the policies will take effect and what the risks are of the objective not being achieved. The most effective policies will be those that most directly target the proposed objective of the NPS.

7.2   Assessing efficiency: costs and benefits

The Quality Planning guidance says that: efficiency – means where the benefits will outweigh the costs, either immediately or over time. The most efficient policy or method will achieve the stated objective with the greatest benefit and the least cost (costs and benefits may be quantitative, semi-quantitative or qualitative). Efficiency is not to be confused with the terms ‘net benefit’ or ‘net present value’ (a measure that implies that all the benefits and costs can be converted to a common currency and netted off against one another to generate a single measure).⁴⁰

Analysing efficiency therefore requires identifying and assessing the various environmental, economic and social costs and benefits associated with the proposed policies, including who or what will face the costs or experience the benefits. More precisely, this will involve evaluating the marginal costs and benefits of the policies. That is, understanding the costs imposed by the existing policy and regulatory framework and then assessing how those costs are likely to differ from those that will arise once the NPS is implemented.
This analysis therefore assesses the potential costs and benefits to local authorities, individuals and the economy by considering the state of current plans and the likely changes that may occur as a result of the policies.

The following actual and potential costs are likely to be associated with the proposed policies.

• Policy development costs and associated ongoing costs borne by central government in offering support, monitoring implementation and reviewing the policy where necessary.
• Compliance costs for local authorities which include:
• administrative costs associated with, for example, reviewing and/or changing plans – including dealing with added submissions and appeals – and taking additional matters into account in consent decision-making, etc
• substantive costs – depending on the nature of the intervention these may includeexpenditure in monitoring and inspection services, or the adoption of non-regulatory initiatives to help ensure national policy is met.
• Compliance costs for resource users which may include:
• administrative costs, such as those associated with applying for consent or providing additional information as part of consent applications
• substantive costs,such as costs associated with the curtailment of development rights or the costs of complying with conditions.
• Broader economic costs that result for a particular community/industry or for the country as a whole. These will be the sum of the compliance costs set out above, plus the indirect costs suffered downstream in the economy.

The relevant benefits of the proposed policies are likely to include the following:

• administrative savings for local authorities (and thereby communities) through, for example, less debate (ie, hearing time and litigation avoided or abridged)
• improved maintenance of biodiversity through the implementation of better, clearer and more effective RMA plans and processes (ie, direct environmental benefits).

When considering the efficiency of each policy, we have therefore examined the costs and benefits associated with:

• the environment
• central government
• local government (district, city, and regional councils)
• resource users (generally landowners and land occupiers)
• communities and the country as a whole.

7.3   Policy 1: Defining significant areas and habitats for the purpose of the NPS

For the purpose of this national policy statement, an area of significant indigenous vegetation or a significant habitat of indigenous fauna is an area or habitat whose protection is important for the maintenance of indigenous biological diversity.

7.3.1   Policy intent

Policy 1 recognises the complex and potentially confusing relationship between local authorities’ biodiversity maintenance function and the responsibility they have under section 6(c) to recognise and provide for areas of significant native vegetation and significant habitats of native animals. Although the objective positions section 6(c) as being highly relevant (though not by itself sufficient) to maintaining biodiversity, it is also important to clarify that the protection of sites in accordance with section 6(c) may be for reasons broader than those articulated in the NPS. Local authorities can, and do, target sites for reasons other than maintaining biodiversity, and they use criteria to identify sites of high ecological importance that are broader than those of the NPS.

Policy 1 states that, for the purpose of the NPS, significant areas and habitats are those that are important for maintaining biodiversity. This implies that local authorities can continue to interpret their section 6(c) obligations more broadly than the NPS should they choose to do so. By clarifying the relationship between section 6(c) and the NPS in this way, the term “significant indigenous vegetation and habitats of indigenous fauna” can be used throughout the NPS without implying limitation on the application of section 6(c) more broadly. As that term is now widely used, the ability to use it in the NPS (rather than introducing a new term) is considered important for the readability and simplicity of the NPS.

7.3.2   Effectiveness

Policy 1 aims to clarify responsibilities to enable the effective implementation of the NPS and other RMA responsibilities. It is not aimed at achieving on-the-ground outcomes. Rather, it aims to ensure the NPS does not cut across what local authorities might be doing in respect of section 6(c) for reasons other than biodiversity, while at the same time clarifying that at least one legitimate measure of ‘significance’ is the whether an area or habitat contributes to the maintenance of native biodiversity.

As the NPS does have statutory weight in policy and regulatory decision-making under sections 55, 67, 75, 104 and 171 of the RMA, Policy 1 can be expected to be effective.

7.3.3   Efficiency

There is little, if any, cost associated with this policy since it confirms established practice. The principal benefit of the policy is that it allows those councils that already protect vegetation and habitat for reasons other than maintaining biodiversity (as promoted by this NPS) to continue to do so. In the absence of this policy, there is a risk that the NPS could inadvertently prescribe, in narrower terms than currently applies, a definition of ‘significant’ that causes local authorities to change plans to conform with the NPS (when they otherwise would not) and/or cease offering protection to areas and habitats that may have previously been protected. The benefits of the policy are avoiding potential compliance cost for local authorities and environmental cost from reduced protection.

While there is a cost associated with local authorities identifying and protecting areas and habitats beyond those identified as priorities in this NPS, that is a cost associated with existing practice and cannot be attributed to this NPS.

For these reasons, the benefits are considered to outweigh the costs and the policy is considered efficient on that basis.

7.4   Policy 2: Criteria for identifying significant indigenous vegetation and the significant habitat of indigenous fauna

In considering the effects of any matter, local authorities shall, in addition to any area of significant natural vegetation or a significant habitat of indigenous fauna identified in, or by, provisions of any relevant regional policy statement, or regional or district plan, regard the following as significant natural vegetation or significant habitat of indigenous fauna:

a.     the originally rare ecosystem types listed in Schedule One
b.     indigenous vegetation associated with sand dunes;
c.      indigenous vegetation associated with wetlands;
d.     land environments, defined by Land Environments of New Zealand at Level IV (2003), that have 20 per cent or less remaining in indigenous vegetation cover; and
e.      habitats of threatened and at risk species.

7.4.1   Policy intent

Policy 2 requires local authorities to ensure they regard certain areas and habitats as ‘significant’ areas and habitats when considering the effect of any resource consent application (including a request for a change or cancellation of conditions of consent), change or variation to a plan (or request for a regional plan), notice of requirement for a designation, or notice of requirement for a heritage order (or to alter a heritage order).

In other words, in the context of any specific development project or proposal for specific protection measures, local authorities need to consider whether the site(s) in question are significant and, therefore, whether their protection is a matter of national importance under section 6(c). This provides some assurance that important areas and habitats will receive recognition when they might be at risk, even in the absence of such sites being identified in existing RPSs and regional and district plans.

The areas and habitats to be so regarded are defined by criteria. These criteria are those included in the National Priorities for Protecting Rare and Threatened Native Biodiversity on Private Land, published as guidelines in 2007.⁴¹ Key underpinning concepts of rarity of vegetation/habitat types; the desirability of maintaining representativeness (the full range of what once existed); and the need to maintain the habitats of threatened species are familiar ecological concepts that are already widely accepted in many RMA plans.

The policy is worded in such a way as to present the matters listed as minimum (or bottom line) criteria. That is, it protects the ability of councils to apply broader or additional criteria to the assessment of areas and habitats, provided any such criteria are included in relevant RPSs and plans. This means that the NPS ought not result in any narrowing of the recognition currently given to areas of native vegetation and habitat.

7.4.2   Effectiveness

The effectiveness of this policy should be assured by the requirement in section 55 (3) for a local authority to “take any other action that is specified in a national policy statement”.⁴² Section 104 (1) requires those making decisions on resource consents to have regard to a NPS. Section 171 does the same in respect of requirement for designations.

The effectiveness of the policy will also be determined by the ability of decision-makers to apply the criteria in a certain and precise manner. All local authorities have access to the LENZ tool and therefore applying criteria (d) should not be problematic. This is likely to be far more effective than the more general criterion of ‘representativeness’ (as previously promoted), which was open to more subjective assessment. Similarly, by listing originally rare ecosystem types in an appendix, the room for debate about where and what these are is greatly narrowed.

The broader question is whether focusing on the areas and habitats identified by the criteria will, of itself, be sufficient to ensure the objective is met. Or whether, a broader range of criteria would be more effective. On that question it is important to remember that the policy aim is to introduce a more uniform level of biodiversity protection. It is not to ensure the broadest possible range of criteria apply at a national scale. Furthermore, it is important to remember that the objective of the NPS is to contribute towards maintenance of biodiversity and that identification of significant areas and habitats is not the only aspect of the NPS (the other acknowledges the need to encourage protection of biodiversity values more broadly). In that sense, the policy can be regarded as effective, notwithstanding that it would be possible to promote broader criteria. It should also be noted that the criteria promoted by Policy 2 have been previously endorsed as the key national priorities. While it is possible to go wider, that would result in added cost.

7.4.3   Efficiency

The cost of this policy arises from the need for local authorities to go beyond their current criteria/definitions of significant areas and habitats when considering the adverse effects in the context of resource consents, designations, plan change requests and similar decisions.

Thus, understanding the extent of this cost requires a comparison of the criteria applied by local authorities currently and those that the NPS requires to be applied.

As noted earlier, MfE has commissioned an update of research into various aspects of current district plans. That research found that 80 per cent of district plans (ie, 60 out of 75 plans) contain criteria of assessing the significance of vegetation and habitat. A further 13 plans do not include criteria but do identify significant natural areas (so have clearly applied some form of criteria).

Of the 60 existing district plans that contain criteria, 40 use the PNA criteria (with some providing specificity as to how the criteria are to be applied that go beyond what the PNA stated and hence these are identified in the research as “PNA (in Part)”). The PNA criteria are a list of seven criteria originally developed in conjunction with the Protected Natural Area Programme – a programme aimed at meeting the objectives of the Reserves Act 1977. Importantly, two of these criteria were representativeness and rarity and special features. These are the broadly similar ecological concepts as are captured by Policy 2’s “land environments with less than 20 per cent remaining vegetation” (which is designed to ensure retention of ecosystems representative of the full range of naturally occurring ecosystem types) and natural uncommon ecosystems, respectively. The only additional matter raised by Policy 2 is the habitats of threatened and at-risk species.⁴³

A further six plans use the Norton Roper-Lindsay criteria (initially developed for the Ministry for the Environment in 1999). Norton Roper-Lindsay proposed three primary and one secondary criteria. The primary criteria include representativeness and rarity/distinctiveness.

A further 15 plans use “other criteria”. It is difficult to draw generic conclusions about the relationship of these “other” criteria and those of the NPS due to an absence of more detailed information that is not available for current research. It should not be assumed, however, that these “other criteria” are necessarily narrower than those of the NPS. They are, though, generally cruder in design. Some will be broader than those of the NPS. Others will be broader or narrower depending on the nature of vegetation being assessed (some, for example, appear only to value forest ecosystems but in that category are all encompassing).

Twelve plans do not specify criteria. It may be that these have simply applied criteria of the relevant RPS but without further detailed research this cannot be confirmed (although it is logical given that district plans have to give effect to RPSs – and prior to the 2005 amendment had to be “not inconsistent with” RPSs).

Of the 60 plans we know about, we can be confident that 46 (77 per cent) already apply criteria that at least include the same ecological concepts as those of Policy 2.

It is important to record that, without further detailed research, we cannot be certain that the concepts in the PNA and Norton Roper-Lindsay criteria are applied in precisely the same manner as proposed by Policy 2. While the concepts are the same, the way they are articulated in Policy 2 with reference to LENZ and scheduled habitat types removes considerable subjective judgement in the application of the criteria. On the other hand, both the PNA and Norton Roper-Lindsay criteria contain additional criteria that represent potentially broader capture than does Policy 2.

While information is incomplete, it seems likely that Policy 2 will result in cost associated with additional areas/habitats being identified through consenting processes (over and above those that would be identified anyway) in a maximum of 29 out of 75 districts. However, it is highly likely that further research would demonstrate that this over estimates the cost impact.⁴⁴ A more precise assessment of how much additional land is likely to be identified as significant and what the economic trade-off of its protection might be has not been attempted here.

In terms of added costs on councils, this is likely to only affect around 20 per cent since we know that 80 per cent already apply criteria of one sort or another. It is unlikely that the imposition of the criteria of Policy 2 will be more expensive (administratively) than applying other criteria. In fact, the more precise and less subjective Policy 2 criteria are likely to be considerably more cost effective to apply.

It is important to note, however, that the above analysis does not include additional vegetation and habitat that might be identified because of the presence of threatened or at risk species. Again information on the presence of these species is incomplete but it is worth noting that few councils currently apply that criterion. (It is not an explicit criterion used by the PNAP or the Norton Roper-Lindsay report). GIS analysis undertaken for this report does suggest that this additional criterion will lead to the identification of sites in addition to those identified by the “LENZ 20 per cent” criterion discussed above. A review of known information in Appendix 3 suggests there could be over 1300 locations of threatened plants alone that would not be captured by the LENZ 20 per cent criterion. Unfortunately, there is no available information on the spatial scale of these locations.

The benefit is that in 29 districts vegetation and habitat important to the maintenance of New Zealand’s biodiversity will be identified in consenting processes when it might otherwise not be. The value of that is difficult to quantify without significant economic analysis. However, given the national importance of maintaining biodiversity the social value is assumed to be high.

It is also important to note that setting criteria nationally, as proposed, avoids repetitive debate (through hearings and appeal processes) as to the appropriate minimum criteria to apply.

7.5   Policy 3: Including criteria in regional policy statements

Any regional policy statement notified after the date on which this national policy statement takes effect, shall, in addition to any other provisions relating to section 6(c) of the Act, include criteria for the identification of areas of significant vegetation and significant habitat of indigenous fauna that include, as a minimum, the areas and habitats identified in Policy 2a–d.

7.5.1   Policy intent

Policy 3 places an obligation on RPSs to include the criteria outlined in Policy 2. Three points should be noted.

First, the policy only applies to RPSs notified after the date on which the NPS takes effect. This is proposed to reduce compliance costs given there are a number of second generation RPSs that have recently been or are on the verge of notification at this time. To require changes to these documents so soon after they have been notified would add cost with little benefit (especially given that Policy 2 requires the NPS criteria to apply regardless of what any RPS might say).

Second, the policy makes clear that the criteria are to apply in addition to any other provisions/criteria that a regional council chooses to include in their RPS. This is designed to reinforce the notion of the criteria being bottom-lines.

Third, reference is only made to Policy 2a–d. The criterion of Policy 2e (habitat of threatened and at risk species) is deliberately excluded. This is not because the criterion ought not to apply in a case-by case basis (in, for example, the context of the resource consent) as Policy 2 makes clear that it should. Rather, it is because the cost of ecological survey to determine the presence of such a large number of species (over 2000) over a potentially large number of sites is considered unreasonable and should not be imposed on territorial authorities (which would otherwise be the consequence given Policy 4).

7.5.2   Effectiveness

Again, Policy 3 can be expected to be effective because under Section 55(2) of the RMA regional councils are obliged to change their RPSs to give effect to a NPS if that NPS so directs it.

Once such criteria are in an RPS, regional and district councils need to give effect to them. In that sense effectiveness assurance is built in to the statutory framework. Whether the criteria themselves are effective in achieving the objectives is discussed in chapter 7.4 above.
The limitation on the effectiveness of this policy is that it will allow those NPSs that were notified prior to the NPS coming into force to continue as proposed (subject to the first schedule process). As noted above, this is to minimise compliance costs for regional councils. Although this may appear to be a significant issue, in practice it is not likely to adversely affect the achievement of objectives. That is because (a) the criteria will continue to apply (in accordance with Policy 2) at the project scale; and (b) regional and district councils will need to be amended to reflect the criteria in accordance with Policy 4. On that basis, the policy will be effective without unnecessarily imposing compliance costs on regional councils.

7.5.3   Efficiency

The benefit of requiring the inclusion of the criteria of Policy 2 in RPSs is ensuring there is a seamless policy framework that avoids conflicting or contradictory criteria at different levels of governance. While the policy makes clear that its criteria are to be included in addition to whatever other criteria might apply, core criteria of RPSs notified after the NPS and regional and district plans will be consistent.

There should be no extra cost for regional councils to require inclusion of the criteria in RPSs notified after the NPS since they would be expected to include some criteria regardless of the NPS. The fact that the criteria are required by a NPS may reduce the costs for regional councils since it will provide a defensible basis for the inclusion of the criteria.

The alternative approach to requiring inclusion of the criteria in all RPSs (and not in regional and district plans) and waiting for those criteria to be “driven down” into regional and district plans (as would occur through the normal working of the Act) would, by contrast, be administratively inefficient. The benefits of this alternative approach would take longer to come to fruition and the costs would be higher since there would be more opportunity for provisions to be debated.

The approach to promoting the inclusion of criteria in RPSs is considered to be efficient since it achieves the desired outcome at low cost.

7.6   Policy 4: Identifying areas and habitats in district plans

District plans and any relevant regional plans shall identify, using (where practical) maps and/or schedules, areas of significant natural vegetation and significant habitats of indigenous fauna by applying the criteria of the relevant regional policy statement and, within five years of this national policy statement taking effect, the criteria of Policy 2a–d (to the extent that these may be broader in scope than those of the relevant regional policy statement).

7.6.1   Policy intent

Policy 4 requires district plans to identify significant areas and habitats by applying the criteria of RPSs and, noting that not all RPSs will necessarily contain the criteria of Policy 2 due to their date of notification relative to the timing of the NPS, the criteria of Policy 2a–d.

Regardless of the NPS, all district plans need to give effect to RPSs. That is what the Act currently states. On that basis, there is no need to provide a timeframe for the identification of sites according to RPS criteria. It will happen in due course. However, there is a need to provide a timeframe for the identification of areas and habitats according to the criteria of Policy 2. That ensures that, should any RPS contain criteria of lesser breadth than those of Policy 2, that RPS’s more limiting effect on district plans’ identification of areas and habitats does not persist beyond a reasonable transition period. That period is set at five years.

Also notable is the requirement for identification to be by way of maps and/or schedules. This is designed to make the criteria both effective and transparent. The words “where practical” are included to recognise that in districts with very large numbers of very small areas and habitats it may not be practical to map them all and other means of identification (eg, by vegetation type) might be necessary.

As with Policy 3 (and for the same reasons), the obligation to identify areas and habitats in plans specifically excludes the habitats of threatened and at risk species.

7.6.2   Effectiveness

The protection of vegetation and habitat is more likely where it is clearly identified in planning documents as being significant. That is what Policy 4 ensures (again via the requirement of section 55(2)).

In some cases, under current arrangements, it is possible for district plans to give effect to RPSs without specifically identifying what vegetation and/or which particular sites are to be regarded as significant. Policy 4 will ensure that does not happen in the future and will bring greater certainty to planning for biodiversity at the district and regional levels. This should reduce the chance that significant areas and habitats will be over-looked when the effect of particular projects or policy changes are being considered.

7.6.3   Efficiency

The cost of this policy for regional and district councils is in the mapping and/or scheduling of sites. The research into district plans revealed that 64 per cent of district plans already use maps and a further 16 use (or are developing for use) schedules. Only two councils do not identify sites at all (although a number appear to do so in databases that are outside of district plans). On that basis, the overall cost for local government should not be high (although it may be high for a small number of councils that have not previously identified sites).

If the number of sites requiring identification increases substantially from that number already identified then the cost will be considerable greater. However, that should not be the case in the 46 councils already applying similar criteria to those of Policy 2. Furthermore, Policy 4 does contain some flexibility by stating that identification is required “where practical”. This is to ensure that those district/regions with a large number of very small sites (eg, small wetlands or dunes) do not have to identify each individually. Furthermore, a period of five years is provided to allow the policy to be complied with as part of the “business as usual” plan review cycle. That should greatly reduce costs for all those councils due to review their plans within that period.

The costs for landowners were discussed in chapters 7.2 and 7.4.3. In summary, a “highest cost” scenario would see a greater number of properties affected relative to current practice in 29 districts. Determining the extent of the area potentially affected needs further detailed analysis.

Overall, the cost for local authorities should not be high. The marginal benefit is in securing site identification in all district plans (instead of the 80–90 per cent at present) and relevant regional plans and the increased certainly that represents.

7.7   Policy 5: Managing effects to achieve no net loss

In addition to the inclusion in plans or any other provisions relating to section 6(c) of the Act, local authorities must manage the effects of activities through district and relevant regional plans (or be satisfied that the effects are managed by methods outside of district or regional plans) to ensure ‘no net loss’ of biodiversity values within areas of significant indigenous vegetation and significant habitats of indigenous fauna by:

a.     avoiding adverse effects to the extent practicable; and
b.     where adverse effects cannot be avoided, ensuring remediation to the extent practicable; and
c.      where adverse effects cannot be remedied, ensuring mitigation to the extent practicable; and
d.     where adverse effects cannot be adequately mitigated, ensuring that any residual adverse effects that are more than minor, are offset in accordance with the principles set out in Schedule 2.

7.7.1   Policy intent

Policy 5 is perhaps the most critical of the NPS. It establishes the obligation for local authorities to manage the effects of resource use to achieve no net loss in biodiversity values within significant areas and habitats. The use of the term “or be satisfied that the effects are managed by methods outside of district or regional plans” is intended to allow councils to rely on methods such as public ownership or covenants on land titles as appropriate means of managing risk of adverse effect. Without this caveat, Policy 5 could be read as requiring councils to address risks through RMA plans when they were already addressed adequately via other existing mechanisms.

The use of the term biodiversity values is defined in the interpretation section of the NPS. The term is used to potentially allow some use of/disturbance to significant areas and habitats provided the biodiversity value associated with the site is not compromised. That is important, as Part d of the Policy introduces the notion of biodiversity offsets. That concept potentially allows for ecological enhancement and restoration activities off site as a means of offsetting any unavoidable effects on site. The approach is not new in resource management but its application is still developing and it remains a field of continuing discussion amongst ecological professionals.

Because the notion and application of biodiversity offsets is still evolving, the NPS contains two safeguards against inappropriate use. The first is the hierarchy of approach presented by Parts a to d of Policy 5. That is, there is a clear obligation to avoid effects as a first priority, remedy as a second, then mitigate and only once these approaches have been exhausted is it appropriate to consider whether any residual effects (those that cannot be avoided, remedied or adequately mitigated) can be properly offset such that there is no net loss in the biodiversity values at stake.

The second safeguard is that any biodiversity offset under this policy needs to be developed in accordance with principles listed in Appendix 1. Those principles replicate those agreed internationally through the Business and Biodiversity Off-set Programme (BBOP). One of these principles is there will be some areas and habitats that are so important that offsetting should not apply to them. Although high level in nature, they erect a meaningful threshold test that is considered appropriate at this time.

7.7.2   Effectiveness

The effectiveness of Policy 5 is difficult to assess. The RMA already requires adverse effects to be avoided, remedied or mitigated. In that sense Policy 5 can be said to impose little (if any) marginal cost, but similarly, no marginal benefit either.

On the other hand, it is important to note that Policy 5 sets up the avoid, remedy or mitigate duty of the RMA as a clear hierarchy. That is, the first obligation is to avoid, then remedy then mitigate. Case law under the RMA is divided on the issue of whether avoid, remedy or mitigate is, or is not, a hierarchy. If the duty it is applied in a hierarchical manner (in respect of effects on biodiversity) this will increase the likelihood of adverse effects being more effectively managed.

However, the most significant aspect of the policy is that it introduces a fourth effects-management option – to offset. This has the potential to greatly increase the effectiveness of policy since it is common for there to be residual effects – that is, effects that cannot be avoided, remedied or mitigated. This leaves the decisions-makers with just two options (a) to accept/tolerate the adverse effects; or (b) to decline the application (or deny the resource through restrictive plan provisions). Neither option is necessarily in the best interests of New Zealand. Policy 5 provides another option and therefore greatly adds to the potential effectiveness of RMA intervention in achieving biodiversity outcomes.

The effectiveness of the policy could, arguably, be enhanced if there was greater certainty over when offsetting is, and is not, appropriate and what measures are appropriate offsets (and in what quantity/ratio relative to effects).

In reality, however, there is insufficient experience with biodiversity offsets for the policy to be able to offer that level of detail. It is likely subsequent practice and experience will enable greater guidance to be given in the future either through amendment to the NPS or by way of non-statutory guidance.

7.7.3   Efficiency

The only significant additional costs/benefits associated with Policy 5 would seem to arise in relation to the offset provision. Costs could arise if future projects were required to offset effects that decision-makers had previously tolerated. This could increase costs associated with resource use and development or even deter investment. That potential needs to be weighed against the possibility that Policy 5 might allow projects to proceed (on the basis that residual effects are offset) that might have previously not been consented or even brought forward for consideration. Again, on the basis of current information, it would be speculative to conclude whether the possible costs outweigh the possible benefits.

It is possible only to observe that explicit enabling of biodiversity offsets does, theoretically, allow for full internalisation of negative externalities and therefore more efficient allocation of resources.

7.8   Policy 6 – Supporting maintenance and enhancement of biodiversity

To promote the maintenance of biodiversity outside of identified areas of significant vegetation and significant habitats of indigenous fauna, and to support the resilience and viability of populations and species assemblages within identified areas and habitats, local authorities should, when considering any matter, and/or when preparing regional policy statements and regional and district plans:

a.     recognise the contribution that all remaining areas of indigenous vegetation make to the maintenance of indigenous biodiversity and encourage the retention of as many elements as possible
b.     recognise the full range of potential adverse effects on indigenous biodiversity including, but not limited to, population fragmentation, degradation of non-living components (eg, water and soil), interruption to breeding cycles and migratory pathways, and increased exposure to plant and animal pests
c.      encourage the retention of existing vegetation, whether indigenous or not (but not including recognised pest plants), that provides:

i.       important habitat for indigenous species
ii.      seasonal food sources for indigenous species
iii.     ecological linkage between areas and habitats identified in accordance with Policy 4
iv.     a buffer to indigenous vegetation for areas and habitats identified in accordance with Policy 4

d.     when existing vegetation and habitat important for indigenous species cannot be retained, encourage measures that mitigate adverse effects on indigenous species during, and subsequent to, removal of that vegetation through harvest or clearance
e.      encourage the planting of locally sourced indigenous species and the creation of habitats for indigenous species
f.      encourage the establishment of additional indigenous riparian vegetation as a means of increasing connectivity and enhancing freshwater habitat for indigenous species
g.      ensure human-made impediments do not interfere with the natural migratory movements of indigenous species
h.     consider both regulatory incentives (such as bonus development rights in exchange for protection and enhancement of vegetation and habitats) and non-regulatory incentives (such as technical advice and practical help) to support and encourage landowners to make appropriate land management decisions.

7.8.1   Policy intent

Policy 6 promotes the protection and enhancement of biodiversity more widely. That is, it focuses not just on the identified significant areas and habitats but also recognises that biodiversity occurs across the landscape and various scales, and that the robustness and resilience of ecosystems requires more than protection of the best (potentially isolated) sites. Policy 6 is important in making the NPS about biodiversity protection and not simply about the protection of specific high-value sites.

The policy refers to a range of matters well recognised in ecology and in many existing RMA plans. This includes matters such as avoiding impediments to movement of migratory species and maintaining seasonal food sources, ecological linkages between sites, buffers around significant sites and riparian vegetation.

The policy also encourages consideration of adverse effects that might be subtler that blanket vegetation clearance (including, for example, exposing areas and habitats to greater risk of plant and animal pests). It also encourages consideration of appropriate incentives in recognition that ecologically sympathetic management of land requires on-going actions by thousands of individual land managers which is largely impossible to regulate and enforce and which needs to be driven by individual willingness to modify behaviour.

Importantly, Policy 6 is phrased as a “should do” policy rather than a “shall do”. This provides a clear signal without being overly prescriptive in the actions expected.

7.8.2   Effectiveness

As with Policy 5, the effectiveness of Policy 6 is very difficult to assess. The policy is deliberately written as an attempt at moral suasion (rather than as a strictly enforceable obligation). That said, in the context of resource management processes, such policies can be relied on by parties wishing to advocate for additional provisions in plans. Indeed, the policy is included to provide that support without assuming that all measures will necessarily be appropriate in all districts. It may well be that the existence of national policy results in regional and district plans promoting a greater level of “sympathetic management” than they otherwise would. However, any attempt to predict the extent of that effectiveness will be largely speculative.

There can be little doubt, though, that if the matters raised in Policy 6 were undertaken the RMA’s effectiveness in maintaining biodiversity would be greatly enhanced. The policy cannot be easily expressed to be more binding in its effect since it raises too many issues that need to be weighed at a more local level.

7.8.3.  Efficiency

The policy could result in increased costs because it may lead to requirements on resource users (eg, limitations on land use) that they might otherwise not face. However, for the reasons set out above, it is not possible to estimate those costs at this time. It should be noted, though, that any additional requirement in plans based on this policy will need to be subject to the First Schedule process and section 32 analysis that considers the costs and benefits at the more localised scale.

Although it is arguable that there is insufficient certainty of Policy 6’s effectiveness or its benefit relative to its cost, the effectiveness of the NPS in making a positive, sustainable contribution to long-term biodiversity maintenance is dependent on the measures set out in Policy 6 being pursued when it is appropriate to do so.

7.9   Policy 7 – Tangata Whenua

To recognise and provide for the role of tangata whenua as kaitiaki, when developing and implementing regional policy statements and regional and district plans local authorities shall provide for:

a.     tangata whenua values and interests to be incorporated in to the management of biodiversity
b.     consultation with tangata whenua regarding the means of protecting and enhancing areas and habitats identified in accordance with Policy 4 that have particular significance to tangata whenua
c.     active involvement of tangata whenua in the protection of cultural values associated with indigenous biological diversity
d.     customary use of indigenous biodiversity according to tikanga.

7.9.1   Policy intent

Policy 7 recognises the relationship of Māori to biodiversity. Māori do have a number of particular interests in biodiversity that need to be recognised in accordance with Part 2 of the Act.

The first is that there may well be principles from traditional Māori knowledge (mātauranga Māori) that can be usefully applied in the management of biodiversity. Recognising and providing for these principles is important in recognising the role of Māori as kaitiaki in accordance with section 7 of the Act. It is also consistent with Objective 7.2 of the NZ Biodiversity Strategy that seeks to recognise and respect mātauranga Māori.

Some areas and habitats identified using the criteria of the NPS will be of particular significance to Māori due to continuing Māori ownership, historical association or perhaps because of the resources they provide for traditional cultural practices.  In respect of such areas and habitats specific consultation with Māori will be of particular importance and value, Policy 7 (b) ensures that such consultation will occur. 

Policy 7(c) ensures that tangata whenua are involved in the protection of areas and habitats when there are particular cultural values at stake.  It is expected that this involvement could take a variety of forms including partnerships in active management programmes or specific consultative/joint decision-making arrangements.

Policy 7(d) ensures consistency with the NZ Biodiversity Strategy by ensuring that protection of vegetation and habitat provides for customary use of indigenous species by Māori provided that use is in accordance with tikanga (traditional customs and practices). This enablement of customary use is, however, limited by other conservation legislation, under which the taking of indigenous species may specifically controlled (including the Wildlife Act, Conservation Act, National Parks Act, Reserves Act, and Marine Mammals Protection Act).

7.9.2   Effectiveness

In short, Policy 7 seeks to provide for the appropriate involvement of tangata whenua in biodiversity management in recognition of the Treaty relationship, tangata whenua’s kaitiaki role, and related existing provisions of the Act.

The extent to which Policy 7 will be effective in securing that involvement will depend on many things including the capacity and resources within hapū and iwi, the willingness of tangata whenua to share traditional knowledge, and the understanding and acceptance of Māori priorities and cultural values within local authorities and their communities.

These are, however, matters that the NPS cannot itself ensure. It can only ensure that the opportunity is made available and that the expectation is clear. By requiring that these matters be “provided for” there is a very clear obligation imposed on local authorities. Under Section 55 of the Act they are required to give effect to that obligation and, on that basis, the policy can be expected to be effective.

7.9.3   Efficiency

The policy may well result in some increased administrative costs for local authorities if they subsequently need to enhance their consultation and engagement procedures and protocols.

This cost is likely to be variable across the country, as some local authorities will already have suitable arrangements in place.  The question of whether the involvement of tangata whenua is achieved in a manner that is administratively efficient and cost effective will be a matter for each individual council to determine. It would not be efficient to prescribe exactly how tangata whenua ought to be involved. This will depend on local circumstances, such as the existing arrangements in place, the number of iwi and hapū, and the level of resources and capacity that exist.

Importantly, Policy 7 does not increase the breadth of areas and habitats that may be subject to the NPS’s provisions. Hence the broader, substantive costs on landowners and economic use should not be increased.

The benefits of the policy accrue to tangata whenua, the Crown and potentially the community generally. Tangata whenua benefit through assuming a more instrumental role in biodiversity matters of key interest to Māori. The Crown benefits from being able to give effect to Treaty obligations (and commitments given in existing statutes and national strategies). The community potentially benefits through having greater access traditional Māori knowledge and increased participation in protection that leads to better biodiversity outcomes.

While these benefits defy quantification, they are significant in the context of the RMA where expectations of all parties can be high. The question of whether benefits outweigh costs is not answerable in this context. In any event, it is important to note that the responsibility for the Crown to meet its Treaty obligations transcends any narrow policy test of efficiency. 

7.10  Policy 8 - Consultation

During the development of biodiversity-related provisions of district plans and relevant regional plans (including prior to notification), local authorities will consult with, and provide reasonable opportunity for the input of:

a.     those whose properties would be affected by the proposed plan
b.     the public
c.      tangata whenua.

7.10.1 Policy intent

Policy 8 reinforces the expectation already apparent in the RMA itself, that those whose properties would be affected by councils’ efforts to identify and protect biodiversity values are to be consulted early in the process (ie, before plans are notified and have legal effect). While the First Schedule of the Act implies this already, the draft NPS makes this obligation much more explicit.

7.10.2 Effectiveness

Effective biodiversity protection outside public conservation land requires willing (or at least not hostile) landowners. Past experience has shown that it is very difficult to introduce an effective protection regime if landowners consider they have not been properly consulted and involved in the design of the local authority’s response. Other parties also need to be closely involved.

Therefore, although the policy may not add greatly to the obligations already under the Act, the policy (and its proper implementation) is critical to the effectiveness of the NPS.

That said, the degree to which the policy will be effective will inevitably depend on the style and quality of the consultation process. That is a matter of practice on which the NPS can say little as it is context specific.

7.10.3 Efficiency

There are clearly costs for local authorities associated with consultation but such costs are a well-accepted part of plan development under the RMA. As noted above, consultation is already required under the First Schedule and therefore cannot be attributed to the NPS.

The benefits of consultation can be a greater level of buy-in from stakeholders and, as a consequence, reduced submissions and appeals through the plan development process. While consultation cannot be expected to necessarily lead to early resolution of conflict, experience shows that an informed community which feels it has been given a fair opportunity to have its say does lead to more focused and constructive debate that can save time and money in the long run.

7.11  Summary of evaluation