The threat to biodiversity from the use and development of private land has been recognised in law since 1991, with the enactment of the Resource Management Act 1991 (RMA). Government responded to the decline of biodiversity, identified by The State of New Zealand’s Environment Report2 (1997) and the New Zealand Biodiversity Strategy3 (2000), in a variety of ways – one of which was a sharper focus on the role of local government in maintaining biodiversity using the RMA.
A review of the state of New Zealand’s biodiversity, conducted as part of this section 32 report, has found no evidence the decline in biodiversity has arrested. Although information is incomplete, that which is available clearly indicates the decline continues. Further, the use of geographic information system (GIS) methodologies4 reveals that 468,000 hectares of private land with native vegetative cover is within LENZ environments that have 20 per cent or less of their original (native) cover remaining. Such environments are regarded as priorities for protection. Although there has been some increase in public ownership and private covenanting of native vegetation in recent years, the reality is that the long-term protection of the 468,000 hectares (and other priority vegetation and habitat) depends on the quality of management it receives under the RMA.
It is important to recall, however, that many of these areas and habitats are already managed under the RMA. Every day for the past 19 years, councils around the country have been making decisions about how native vegetation will be managed. At the broader level, they make these decisions when setting the framework for biodiversity protection (and the use of associated natural resources) through their plans and policies. On a day-to-day basis, these decisions are made in response to project-scale applications (ie, resource consents, designations, plan change requests, etc). Such applications may involve clearing land for development or other intensive land uses, or a wide range of other activities with less direct consequences for biodiversity.
The following characteristics make such decisions challenging:
- 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
- biodiversity management is frequently controversial; inevitable tensions arise between economic or socio-economic aspirations (of individuals or the wider community) and environmental outcomes
- while councils often seek to minimise tensions, the science associated with biodiversity management can be complex and contested. Non-statutory guidance has not proved effective to date
- there is frequent debate about what protection means and whether methods other than rules are adequate
- the identification of areas and habitats in plans – and their protection – has often been the subject of debate and appeals, leading to significant costs and delays in getting plans settled
- while biodiversity protection can prevent economic development opportunities if pursued inflexibly, there is also debate about how much flexibility is appropriate given the finite nature of biodiversity values. Biodiversity offsets can have a valid role to play here. The concept is not specifically provided for in law, but is possible under provisions of the RMA. While there is pressure to adopt this approach, there are no established principles for using biodiversity offsets.
The Government is seeking to achieve:
a. a better (more uniform) level of protection for biodiversity around the country
b. reduced administrative churn for local government (and participants in RMA processes relating to biodiversity)
c. flexibility in the management approaches adopted at local and regional levels to ensure sensible decision-making in the overall interests of New Zealand.
The options to achieve the Government’s goals are:
- continuing with current practice
- amending the Act
- increasing funding to existing non-regulatory programmes, providing further non-statutory guidance
- targeted assistance to the most in need councils
- a national environmental standard (NES)
- a national policy statement (NPS).
Of these options, only a NPS can effectively deliver the direction that can help statutory decision-making under the RMA, while maintaining the appropriate degree of local and regional discretion needed to make sensible, locally-responsive and relevant decisions.
The objective of the proposed NPS is appropriate as it directly addresses a matter that is central to the purpose of the Act. The three caveats – supporting the good practice of local authorities; recognising the positive contribution of landowners; and recognising that the well-being of people and communities relies on making reasonable use of land – are important in ensuring biodiversity maintenance is pursued in a reasonable and achievable manner.
All seven policies of the NPS are considered to be the most appropriate to deliver efficiency and effectiveness. The key reasons for this can be summarised as:
- Policy 1 states that, for the purpose of the NPS, an area of significant native vegetation or a significant habitat for native animals is an area or habitat whose protection is important for maintaining biodiversity. 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 clarifying that at least one legitimate measure of “significance” is whether an area or habitat contributes to the maintenance of biodiversity. It will be effective simply because the NPS will have statutory weight in policy and regulatory decision-making under sections 55, 67, 75, 104 and 171 of the RMA. It will be efficient because it is considered to have little cost, but provides the benefit of avoiding confusion (and reduced protection) that might occur if the NPS was introduced without such a policy in place.
- Policy 2 sets out four core criteria to be applied to identifying significant vegetation and habitats, and one criteria for threatened species. It requires these to be applied at the time of any resource consent application (or similar project-scale process). It is appropriate because it introduces a degree of bottom-line consistency across local authorities that is essential if biodiversity is to be maintained at the national scale. It is more effective than the status quo because the criteria are more specific and less open to subjective interpretation. It is efficient because it avoids district-by-district debate about what criteria should be applied, and because the criteria are already used (in some form) by 46 of the 75 district plans. That leaves a maximum of 29 districts (and possibly many fewer) where the criteria are likely to result in the identification of additional sites (and therefore added cost), although identifying habitats of threatened species may affect a wider number of local authorities.
- Policy 3 requires regional policy statements (RPSs) notified after the NPS is in place to include the criteria of Policy 2. It is effective because it will ensure a seamless policy framework where the cost of doing so is low. The cost of the policy is low since recently notified RPSs do not need to be changed, while the criteria will still take effect through regional and district plans and (even before those plans are changed) through Policy 2, and the consideration of criteria in the context of any resource consent applications or similar matter.
- Policy 4 requires district plans to identify significant native vegetation and significant habitats of native fauna. Having sites identified is a prerequisite to being able to manage them (and any impacts on them) in a proactive way. The policy will be effective because it will ensure all districts identify significant sites. The cost of this policy for regional and district councils is in the mapping and/or scheduling of sites. Currently 64 per cent of district plans already use maps and a further 16 use (or are developing for use) schedules. Thus, the cost of mapping will largely fall on the 10–20 per cent of local authorities who currently do not use maps, although some local authorities who currently do identify sites may need to identify a greater number than previously. The benefit is greater transparency and an improved ability to manage risks to significant sites.
- Policy 5 sets out an effects management hierarchy and 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. It is effective largely because it introduces a fourth effects-management option – the ‘biodiversity 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. When this occurs, applications must either be declined or adverse effects tolerated. In the context of biodiversity loss (in particular) neither option is necessarily in the best interests of New Zealand. Policy 5 provides the option of achieving win-win (or at least win, no loss) outcomes, and therefore adds to the potential effectiveness and economic efficiency of RMA intervention.
- Policy 6 promotes the protection and enhancement of native biodiversity more widely than just identified significant areas and habitats. Ecological theory suggests the resilience of ecosystems requires attention to wider landscape issues. Effectiveness in maintaining biodiversity long term means achieving sympathetic management. In that sense, Policy 6 is critical to the NPS being focused on native biodiversity and not simply isolated high-value sites. Given that the policy is not worded to be strictly enforceable, assessing its effectiveness and efficiency is not possible. The policy could result in costs associated with greater restrictions on land use, but these would be subject to local section 32 analysis.
- Policy 7 provides for the involvement of tangata whenua in biodiversity management in recognition of the Treaty relationship and role of tangata whenua and kaitiaki. It aims to mirror commitments of the NZ Biodiversity Strategy by supporting involvement of tangata whenua, recognising their values and interests and providing for customary use of indigenous species in accordance with tikanga. The effectiveness of the policy will inevitably depend on factors outside the NPS’s control but the obligation of the NPS is clear and local authorities will be required to give effect to it. The efficiency of iwi involvement from an administrative perspective will be determined by the quality and workability of arrangements determined regionally and locally. While there may well some additional administrative/process cost arising from this policy there are also clear benefits associated with meeting Treaty obligations and enhancing outcomes.
- Policy 8 requires consultation with landowners, the community and tangata whenua when developing biodiversity-related provisions. Consultation with those affected is widely regarded as critical to effective planning for biodiversity. This is evidenced by past examples of planning responses that have met strong public opposition through lack of effective consultation. While there is a cost associated with consultation, this is more properly attributed to the RMA itself, as such consultation is required under the First Schedule of the Act.
This analysis has been limited by incomplete information. Ideally, there would be better information available to assess the marginal difference between current practice and what this NPS requires. Such information is, however, difficult to acquire, in part due to New Zealand’s highly devolved management system.
Notwithstanding the absence of complete information, what is known establishes a prima facie case that the section 32 tests requiring objectives and policies to be effective and efficient can be met.
2. The Ministry for the Environment. 1997. The State of New Zealand’s Environment 1997. Wellington: GP Publications.
3. Ministry for the Environment, Department of Conservation. 2000. The New Zealand Biodiversity Strategy: Our Chance to Turn the Tide. New Zealand Government, Wellington.
4. Ministry for the Environment, Department of Conservation. 2000. The New Zealand Biodiversity Strategy: Our Chance to Turn the Tide. New Zealand Government, Wellington.