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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

4 What are we trying to achieve?

The discussion in chapter 3 demonstrates that, on the basis of available information, biodiversity remains in decline and that there are some broad-scale indications that pressures on biodiversity may increase in the future, rather than diminish (notwithstanding recent additions to the public conservation estate and other types of legal protection).

In some ways, the RMA anticipates ongoing pressure on biodiversity and seeks to address this through its provisions and the functions ascribed to regional councils and territorial authorities. The key question then, is what are we trying to achieve by further intervention by way of a NPS? Or, put another way, why isn’t the existing intervention and legislative mandate sufficient?

4.1   What are the main issues?

The previous chapter identified the main resource management issue we need to address: the ongoing decline in biodiversity outside of public conservation land. This is challenging for regional councils and territorial authorities to address because of the following inherent characteristics of biodiversity protection.

• The task of managing resources to maintain biodiversity is multi-faceted. It requires biodiversity to be considered in a wide range of resource management decision-making contexts and in the exercise of a range of functions (ie, land use, soil disturbance, discharges to land and water, abstractions, etc). Because the biodiversity function was added some 12 years after the RMA was first enacted, the relationship of this function to other relevant provisions is not as clear as it might be. Currently, there is some confusion about whether the biodiversity maintenance function can be adequately exercised simply by protecting significant sites and habitats in accordance with section 6(c) of the Act.
• Maintaining biodiversity is frequently controversial. Inevitable tensions arise between the aspirations of private landowners for the use and development of their land and the desirability of protecting native vegetation and habitat.
• The burden of protection falls unevenly and inequitably across both landowners and local authorities. The reasonableness (and therefore acceptance) of land-use restrictions on landowners tends to depend on the proportion of a property affected. The existence of biodiversity values does not respect property or administrative boundaries. Often the benefit of protection is national or regional but the cost is at the individual property or local level. Paradoxically, those who are ‘penalised’ through restrictions on land use are those who have retained vegetation and maintained habitat. Those that escape the cost of restrictions do so because they (or previous owners) have already exacted the benefits from vegetation and habitat loss or modification.
• One way local authorities seek to minimise conflict and controversy is to rigorously prioritise what needs to be protected. However, this is itself a complex matter in which there is no established professional consensus, meaning it is debated repeatedly. Further, in order to minimise conflict (and associated cost) there is an incentive for (particular poorly resourced) local authorities to minimise the number and/or extent of areas to be protected – potentially at the expense of national priorities. There is little evidence that the non-statutory statement of national priorities has been influential.
• There is also frequent debate about what protection entails and the appropriate means by which protection can be assured. That debate is centred around whether the restrictive rules are essential or whether councils are entitled to rely on other methods (such as QEII covenants or incentive-based rules – such as those that provide added development rights in exchange for legal protection).
• The issues described above mean the identification of areas and habitats in plans – and their means of protection – has often been the subject of appeal and significant cost. The Crown itself (through DoC) has been party to many such appeals in the past. With a new round of plans likely in the near future, it is likely that these matters will be relitigated.
• Finally, section 5 of the RMA promotes the idea that the environment is to be protected while (at the same time) the social, economic and cultural well-being of people and communities is enabled. Section 6(c) on the other hand, refers to the protection of areas and habitats as being a matter of national importance. Pursued relentlessly and inflexibly, implementing section 6(c) can foreclose rather than enable well-being (when, for example, it thwarts an otherwise acceptable development project). This can lead to a debate about whether (and in what circumstances) it is appropriate to allow vegetation or habitat to be adversely affected (thereby enabling an important development project) provided no net loss in biodiversity can be secured by the project proponent engaging in biodiversity offset activity.³⁴ The place of this approach in the RMA is currently not well established and local authorities therefore operate in an environment of some uncertainty as to the legitimacy of the approach. Without flexibility in the means of protection (through an acceptance of offsetting in appropriate situations) there is a risk that further promotion of biodiversity could have implications for some economic growth opportunities.

4.2   What are we trying to achieve?

4.2.1   Desired outcomes

Based on the analysis of issues already discussed, the outcomes the Government wants to pursue for enhanced RMA practice as it affects native biodiversity are as follows:

• clear central government direction to regional and district councils on their responsibilities under the RMA to maintain native biodiversity outside public conservation land. This includes clarification that protecting sites under section 6(c) is necessary but not sufficient in the exercise of the ‘maintenance of biodiversity’ function
• strong national policy support for those councils that wish to do more for biodiversity protection but may feel constrained by contentious, time-consuming and costly decision- making processes
• better specification of minimum criteria for identifying areas and habitats important to the maintenance of native biodiversity, especially for those councils that have inadequate or non-existent criteria. This would constitute a ‘bottom line’ in local government performance
• clear national policy guidance to landowners and communities about the Government’s minimum expectations for biodiversity protection, together with practical options to assist with the tradeoffs that will be required in order to achieve these expectations.

In short, the Government wants:

• a better (more uniform) level of biodiversity protection
• reduced administrative churn for local government (and participants in RMA processes relating to biodiversity)
• flexibility in the management approaches adopted at local and regional levels to ensure sensible decision-making in the overall best interests of New Zealand.

4.2.2   Scope: what this NPS will not address

Indigenous vegetation is important to New Zealanders for reasons other than maintaining biodiversity. Many local authorities already recognise and protect vegetation and habitat because of (for example) local conservation, landscape, recreational and cultural values. Although the Government recognises the legitimacy of that protection when endorsed through the RMA processes, the NPS on biodiversity does not address vegetation values for those other reasons.

Similarly, the NPS is not about what happens on DoC-managed public conservation land. Although the RMA does apply to DoC-managed land in certain circumstances, the provisions of the applicable conservation legalisation are regarded as offering sufficient recognition and protection.

The New Zealand Coastal Policy Statement (NZCPS) addresses matters of marine biodiversity as are relevant under the RMA (noting that some aspects are managed under fisheries legislation) and the NPS on Biodiversity need not, therefore, apply in the coastal marine area.

4.3   Are these outcomes appropriately addressed under the RMA?

The outcomes described in 4.2.1 are primarily about improving the RMA policy and planning processes in order to maintain native biodiversity within the broader statutory purpose of sustainable management. Biodiversity protection is integral to the purpose and principals of the RMA, including several matters specified in section 6 and 7, most notably section 6 (a), (b) and (c) and section 7 (d). Maintaining biodiversity is also central to regional functions under section 30 (1) (ga), and territorial authorities under section 31 (1) (b) (iii).

Clearly, therefore, the outcomes described in 4.2.1 fall within the scope of the RMA and are appropriately addressed within its ambit.