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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

5 Alternatives to the status quo

The previous chapters have discussed the need to improve the RMA planning framework to better address the current and future risks of further loss of native biodiversity on private land; and that this is an appropriate outcome to be achieving under the RMA. The next step in this section 32 report is to identify and evaluate the regulatory and policy interventions that could be used to address these risks.

Policy tools available to the Government fall into three categories:

• regulatory tools, such as national environmental standards under the RMA
• policy tools, such as non-statutory guidance or a national policy statement
• funding tools for further biodiversity protection and information services.

5.1   Evaluation of the alternatives

5.1.1   Status quo: Continue as we are

This option would rely on current programmes, including MfE non-statutory guidance, council programmes, DoC advocacy on district plans and resource consent applications, and support to landowners and councils through the existing Biodiversity Condition and Advice Funds, Nature Heritage Fund, QEII National Trust and Ngā Whenua Rāhui.

However, for the reasons outlined previously, this approach would not be an effective or efficient means of achieving the desired outcomes, and is likely to make the desired outcomes even more difficult to achieve over the medium to long term.

5.1.2   Amend the RMA

The RMA could be amended to be more specific on planning requirements for biodiversity, such as requiring that local authorities plan for native biodiversity outside public conservation land in regional plans and/or district plans, and providing specific methods to be applied.

The advantage of amending the RMA is that it provides a clear, unambiguous legal obligation. However, this option would be contrary to the existing RMA framework, which generally sets out processes and principles rather than prescribing matters of technical detail. It would also require significant amendments to be made to the RMA, and the introduction of a specific regime for planning for native biodiversity.

For these reasons, amending the RMA is not considered the most effective means of achieving the desired outcomes.

5.1.3   Increased funding

Increasing existing Government funds and Government-assisted funds would accelerate protection of ecosystems and habitats through voluntary mechanisms. The existing funds could be realigned to target the threatened ecosystems and land environments.

Government funding, at present, is in two streams. The first is funding for direct purchase of land (Nature Heritage Fund) and assistance to achieve legal protection (QEII Conservation Trust, Ngā Whenua Rāhui). The second is funding physical protection (Biodiversity Condition Fund).³⁵

Funding land purchase and other legal protection is effective in dealing with direct threats to the protected sites, but much less effective in addressing indirect threats from unsympathetic management within the wider landscape.

Funding physical protection through fencing and pest control can effectively address key threats, but again is much less effective in addressing indirect threats unless coordinated with other initiatives.

Although increasing funding may influence the ability for local authorities to amicably secure protection of particular areas in a limited number of additional cases, funding cannot be realistically increased to remove all tension, and therefore cannot be seen as a substitute for the RMA.

Also, none of the existing funding tools can address the issues about policy certainty cost and consistency in the way local authorities exercise their functions under the RMA.

For these reasons, increased funding for biodiversity is not considered the most effective means of achieving the desired outcomes.

5.1.4   Targeted assistance to local authorities

Central government could target councils which are struggling to meet their biodiversity responsibilities under the RMA with assistance to help them lift their performance in biodiversity maintenance and protection.³⁶ This could involve appointing officials to work with specific councils to assist them with planning, monitoring and engagement with land owners.

While such an approach may serve to lift the profile of biodiversity within a select number of councils it would be unlikely to influence RMA decision-making which is determined by elected councillors, independent commissioners and the Courts. The Act itself, national policy (or absence of it), case law and community views would likely remain more influential of statutory decisions.

Targeted assistance is potentially a very useful tool and could contribute to some of the outcomes sought. But it is unlikely to be able to deliver the broad influence of RMA decision-making that is essential to meeting the desired outcomes.

5.1.5   Provide further non-statutory guidance

The potential effectiveness of non-statutory guidance is always difficult to determine. In this case, however, various guides have been published over a number of years. These include the Norton and Roper-Lindsay report on Criteria for Assessing Ecological Significance in 1999,³⁷ various iterations of advice on the Quality Planning website and, most recently, the national priorities.

On the basis of that experience, it seems unlikely that further non-statutory guidance will deliver the outcomes sought.

5.1.6   National environmental standards

A NES is a regulation that can (amongst other things) control activities directly and independently of regional or district rules. A NES may also take a second, rather different, form by prescribing the way councils must manage activities and resources, including classifying activities, prescribing monitoring methods to be used and similar matters of regulatory practice.

NESs therefore generally have three advantages because they:

• can take effect instantly (rather than having to be applied through plans)
• are stand-alone regulations and can be independently enforced through the enforcement provisions of the RMA
• can more directly remove decision-making discretion from local authorities and provide for greater certainty of outcome (certainly in terms of matters relating to resource consents).

However, in terms of the desired outcomes for native biodiversity, a NES would be an overly prescriptive and relatively inefficient approach to improving policy and planning processes throughout the country. This is because it imposes one solution – a rule – for every situation. There is also a risk that regulation may provoke resistance and undermine good will, as well as undermining existing voluntary biodiversity initiatives.

A further drawback of a NES is that private compliance costs would be high, since a national environmental standard could override existing use rights currently held under section 10 of the Act, and/or force a resource user to apply for consent within six months. Nor would a NES allow for any local judgement in evaluating the opportunity costs of protection against the value of protection.

Social costs, also, are potentially high. A NES could be perceived by local government as contradicting the devolved approach to environmental management. A NES would make redundant many district plan provisions developed after extensive consultation. It would also remove the ability for local authorities to tailor solutions to local circumstances.

It may also take considerable time to develop an appropriate NES for biodiversity (ie, methods and criteria), whereas a NPS can be implemented reasonably quickly. This is an important consideration because further delaying national intervention is likely to increase the current and future risks to biodiversity.

For these reasons, a NES is not considered the most effective means of achieving the desired outcomes.

5.1.7   National policy statement

National policy statements contain objectives and policies on matters of national significance that must be ‘given effect’ to in RMA planning documents and given ‘particular regard to’ in resource consent decision-making. They therefore provide a potentially useful means by which a national policy can be implemented through local and regional decision-making.

A NPS may be prepared on any matter where the Minister considers it useful to state matters of national significance that are relevant to achieving the purpose of the RMA (provided the prescribed process is followed, including the obligation under section 32 to consider the costs and benefits). Section 45 of the RMA sets out a range of matters that the Minister may have regard to when deciding whether it is desirable to prepare a national policy statement. These are broad, and the desire to ensure New Zealand’s biodiversity is maintained is encompassed by the matters specified.

Essentially, a NPS will affect what territorial authorities and regional councils put in their plans and the weight given to particular matters when considering resource consents. So, in a practical sense, a NPS on biodiversity may be justified if:

1.    The quality of existing planning and planning decisions is poor – as reflected by:

• there not being good/comprehensive provisions in district and regional plans and/or
• biodiversity not being given the desired weight in consent decisions or

2.    The nature or scale of pressures on biodiversity is expected to change such that existing provisions (that may have previously been adequate) will not be suitable for the future.

Both of these criteria would suggest that a NPS could provide an appropriate means to achieve the desired outcomes, provided any associated costs do not outweigh the benefits of such an intervention. Based on the assumption that the proposed NPS will not directly require existing plan provisions to be reviewed ahead of would have otherwise have occurred, the administrative costs to local authorities (and therefore communities) should be low.

A NPS would promote a national approach to areas and habitats that are important to the maintenance of native biodiversity. It would provide direction that facilitates certainty and consistency in the way that local authorities deal with biodiversity. It would ensure that vulnerable ecosystems such as dunelands, wetlands and those that are significantly reduced at a national or regional level are given recognition by local authorities in their plans and regional policy statements.

A NPS would allow councils to determine the most appropriate means to protect priority areas. This would enable those councils that have already made good progress to continue with approaches that are already working well. In some cases, rules might be applied, but some local authorities might rely, instead, on other measures to achieve the protection required.

The environmental benefits of a NPS are potentially high (provided the provisions put into place by local authorities to give effect to the NPS do not provoke pre-emptive actions by landholders to clear native vegetation). The NPS would require the protection of vegetation and ecosystems that are most susceptible to biodiversity loss, while enabling local authorities to tailor responses to actions most effective in the local context.

A NPS would have social benefits in that it could help to justify and focus local authority effort and expenditure on native biodiversity. In addition, it would demonstrate leadership and raise the profile of the issue nationally. It is also likely to encourage greater coordination and collaboration of the efforts of community stakeholders. A NPS focusing on recognising and identifying areas important to the maintenance of biodiversity would also have public administration benefits. This is because local authorities would have much clearer guidance about the areas that are important and what issues their plans need to address.

For these reasons, a NPS is considered the most effective means of achieving the desired policy outcomes.

5.2   The preferred option

Having examined six options, a national policy statement is considered the most appropriate means of achieving the Government’s desired outcomes in respect of the following matters:

• clear central government direction to regional and district councils on their responsibilities under the RMA to maintain native biodiversity outside public conservation land
• strong national policy support for those councils that wish to do more for biodiversity 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 maintaining native biodiversity, especially for those councils that have weak or non-existent criteria
• 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 trade-offs that will be required in order to achieve these expectations.

The basis for this view is summarised in the following table.

Table 1:       Comparison of different options’ effectiveness in achieving the policy objective

5.3   Risks of acting or not acting

Section 32 (4) (b) of the RMA requires this evaluation to take into account the risk of acting or not acting if there is uncertain or insufficient information about the subject matter of policies.

The risks of acting do not appear high since the primary objective is to enhance the way local authorities undertake an existing statutory function. The primary risks relate to the potential to change (either up or down) the number/extent of areas of vegetation and habitat identified and protected by RMA plans. A significant increase in areas identified may cause some adverse landowner reaction that is counter-productive to long-term conservation interests. A significant decrease in sites may reduce the overall level of protection afforded to native vegetation. The likelihood of this risk can only be assessed by very detailed assessment of the effect of the NPS compared with current plans. Such a task is significant in scale and has not been undertaken at this point. The policies of the NPS are, however, deliberately designed to mitigate these risks.

The risk of not acting is that native biodiversity off public conservation land is likely to continue to decline. Obligations and expectations of local authorities will likely remain unclear and RMA planning processes (particularly district plan preparation) will continue to be lengthy and litigious. This uncertainty may lead, in different places and at different times, to both environmental cost (through loss of ecosystems and species) and to economic cost (if inflexible protection regimes are imposed). Much more will be left to be settled by the Courts.