Perhaps known only to those schooled in the dark arts of resource management and environmental law, significant changes have been made to the way New Zealand’s indigenous biodiversity is to be managed.

The National Policy Statement for Indigenous Biodiversity (NPS-IB) became part of the country’s law on 4 August, its approval by the Governor-General having been gazetted four weeks earlier, on 7 July. The lack of a National Policy Statement on Indigenous Biodiversity has long been thought to be a gap and there have been several attempts over the years to get it off the ground. Previous attempts failed because of landowner opposition and the complexity of competing interests.

This NPS-IB is the result of a collaborative process, initiated by the Royal Forest & Bird Society of New Zealand. Working with Federated Farmers, the society gained the ministry’s approval and drew together a number of other sector groups, including the Environmental Defence Society, iwi, agriculture industry groups and the Forestry Association, and began work six or seven years ago.

The release of the NPS was tucked away in a media statement about an upcoming public consultation on “a national biodiversity credit system to support landowners” (preliminary consultation is now under way).

Compensation for landowners whose use of land would be curtailed by greater protection of indigenous biodiversity had been thought to be one of the sticking points holding up release of the NPS-IB, which arose out of the collaborative way the document was put together.

Top priority

As a National Policy Statement, the NPS-IB sits at the top of the hierarchy of planning documents under the Resource Management Act 1991 (RMA). Councils must give effect to the NPS-IB when formulating their planning rulebooks for their districts or regions and decision-makers must have regard to the NPS-IB when making decisions on resource consents and other environmental approvals.

The NPS-IB provides preliminary provisions, an objective and policies (17 brief policy statements), an implementation framework and detail on timing (plus appendices). In short, the objective the NPS-IB seeks to achieve is the maintenance of indigenous biodiversity to a “no overall loss” state, to be achieved through:

• recognising the mana of tangata whenua as kaitiaki of indigenous biodiversity; and
• recognising people and communities as stewards of indigenous biodiversity; and
• protecting and restoring indigenous biodiversity as necessary to maintain indigenous biodiversity; while
• providing for the social, economic and cultural wellbeing of people now and into the future.

Notable amongst the policies are:

• policy 1, which requires indigenous biodiversity to be managed in a way that gives effect to a set of decision-making principles, which are set out as part of the preliminary provisions. These principles require, inter alia, the mauri, intrinsic value and wellbeing of indigenous biodiversity to be prioritised, the principles of the treaty to be taken into account and te ao Māori and mātauranga Māori to be applied.
• policy 2, which provides for tangata whenua to exercise kaitiakitanga for indigenous biodiversity in their rohe, including through managing biodiversity on their own land and actively participating in other decision-making about indigenous biodiversity.

Other policies provide for:

• a precautionary approach to be adopted when considering adverse effects on indigenous biodiversity;
• indigenous biodiversity to be managed in such a way as to promote resilience to the effects of climate change;
• significant indigenous vegetation and significant habitats of indigenous fauna to be identified as SNAs (significant natural areas); and
• the importance of maintaining indigenous biodiversity outside SNAs to be recognised.

Implementation

The NPS-IB has a detailed implementation framework, which provides “a non-exhaustive list of things that must be done to give effect to the objectives and policies”. The three sub-parts set out:

• the general approaches to implementation, including involving tangata whenua as partners in the management of indigenous biodiversity; provisions relating to identification and management of SNAs and management of indigenous biodiversity outside SNAs;
• specific requirements that relate to indigenous biodiversity – for example, requirements relating to specified highly mobile fauna; and
• exceptions for specified Māori land, and requirements relating to indigenous species, populations and ecosystems that are taonga.

At the core of the NPS-IB is a requirement that territorial authorities (district councils) must map and protect SNAs, including SNAs they are aware of when preparing their plans but also SNAs they subsequently become aware of. With limited exceptions, any new subdivision, use or development that is in or affects an SNA must avoid adverse effects on the SNA.

In terms of coverage, the NPS applies only to the terrestrial environment (ie, to land above Mean High Water Springs, excluding land covered by water, waterbodies and freshwater ecosystems). Biodiversity in the coastal marine area and on land covered by freshwater continues to be managed under other National Policy Statements (the New Zealand Coastal Policy Statement and National Policy Statement for Freshwater Management), though biodiversity strategies prepared by regional councils can address biodiversity in these areas.

A long-standing challenge in resource management planning has been responding to highly mobile fauna, which have dispersed habitats. Case-bycase resource consenting decisions can cause “death by 1000 cuts”.

The NPS-IB responds to this issue by requiring regional councils to record areas outside SNAs that are highly mobile fauna areas (for identified highly mobile species), including by working with tangata whenua, landowners, territorial authorities and the Department of Conservation. Councils must include provisions in their planning rulebooks about the way the adverse effects of new subdivision, use and development on highly mobile fauna areas will be managed.

Finally, the new NPS sets up biodiversity compensation and biodiversity offsetting regimes, both defined, requiring net gain (as opposed to no net loss). Existing activities – such as grazing – can continue and the NPS provides for indigenous biodiversity to be “managed within plantation forestry while providing for plantation forestry activities”. This was another of the sticking points thought to have held up the release of the NPS.

Comment

The NPS-IB has been welcomed by Forest & Bird and the Environmental Defence Society, which see it as a great step forward for protecting nature while providing certainty to landowners, farmers, growers, tangata whenua, forest owners and others. However, Federated Farmers now sees it as paving the way for uncertainty, increased costs, perverse outcomes and less effective management of native flora and fauna on private land.

The full impact of the NPS-IB remains to be seen, as planning processes need to run their course to identify SNAs and implement objectives, policies and rules for SNAs and highly mobile fauna areas. Importantly, the NPS-IB identifies a number of activities and sectors where it does not apply, including a blanket exception for renewable electricity generation and more limited exceptions in the case of Māori land and forestry.

This raises the obvious question – why is loss of indigenous biodiversity tolerated in some sectors and for some classes of activity, but not others?

Noteworthy also are some of the contentious issues the NPS-IB has left unaddressed, probably the most prominent being the lack of some sort of compensation regime. SNAs in production forestry in the coastal environment will continue to cause problems for foresters, given that the highly directive biodiversity policy in the New Zealand Coastal Policy Statement will prevail over the NPS-IB’s more permissive regime in those areas. ■

Richard Gardner is a barrister practising in the fields of environmental law, local government, public administration and rural law. He is a member of The Law Association’s Environment and Resource Management Law committee. Mike Doesburg is a partner in Wynn Williams’ environment and local government team and is co-convenor of The Law Association’s Environment and Resource Management Law committee ■