Maintaining native biodiversity potential can of worms

Submissions on the proposed National Policy Statement (NPS) on Indigenous Biodiversity closed on 2 May and there is no specified timeframe for the evaluation process and progress into law of this particular NPS. But the agitation coming out of the East Coast, particularly Wairoa District, suggests this will be neither quick nor easy.

 

National Policy Statements are designed to sit above the Regional and District Plans at the top of a planning document hierarchy, and a NPS must be consistent with the Resource Management Act. However there is a risk it will cause further confusion for Councils and landowners, unless significant clarification occurs. For example one policy requirement is for areas of significant indigenous vegetation to be precisely defined, beyond those contained in the District Plan, but this will entail a major mapping expense for the Council.

 

There has been a recent case, although it has dragged on for several years, involving the Bayly Family Trust, Wairoa District Council (WDC) and DoC, in which WDC had granted the Trust a resource consent to clear scrub on Waikatea Station and which DoC took to theEnvironment Court. Its attempt to have the consent overturned was rejected on the basis the proposed protection, fencing and covenanting of 799 ha on the station was sufficient to compensate for kanuka scrub clearance on another 354 ha.

 

Since theEnvironment Court’s decision, efforts to agree a realistic fencing programme with DoC have proved impossible, so the Bayly Trust has withdrawn, taking the not unreasonable view it isn’t prepared to covenant an additional 80 ha and spend $1.5 million on fencing. DoC, in its arrogance, has decided not to accept the spirit of theEnvironment Court’s decision and has made its acceptance conditions too onerous for the Trust to accept.

 

A further issue is whether kanuka and manuka should be counted as indigenous species in need of protection. These are not threatened species, but an integral part of hill country farming and the regular cycle of scrub clearance and regeneration. Nick Smith, Minister for the Environment, sent an email out earlier this month stating specifically, “the draft NPS on biodiversity…does not require Councils to protect low value areas of species like kanuka and manuka. The draft specifically refers to “significant” areas of flora and fauna, and the court decisions to date on this would not support such areas… The draft also requires Councils to recognise the rights of landowners to make reasonable use of their land.”

 

The key points to note here are firstly DoC doesn’t appear to share the Minister’s confidence about the status of kanuka and manuka, given its attempt to overturn WDC’s decision, secondly the NPS must be specific on this matter, otherwise there will be countless court cases when DoC tries to demonstrate the opposite and gain a ruling in its favour. The Minister also makes clear his view landowners should be able to make reasonable use of their land. But John Bayly’s experience suggests this won’t be the case, unless the NPS is very specific in spelling out what is permitted and what isn’t.

 

The strength of feeling around Wairoa is illustrated by the outcome of a meeting arranged by Bayly in April at which the 94 landowners voted unanimously to oppose the NPS in its present form. On 27th May, David Carter, Minister of Agriculture, visited AFFCO’s Wairoa plant and some farms before attending a public meeting at which he will no doubt have gained a very clear impression of the reasons for objections to the NPS.

 

Matthew Lawson, the lawyer acting for WDC on all resource consent matters, doesn’t disagree with the principle of a NPS as the most constructive means of regulating the maintenance of indigenous biodiversity, but he says there are some scary aspects to the proposed NPS which would seriously damage landowners’ ability to make ‘reasonable use of their land’ (the Minister’s phrase). In Lawson’s opinion the concept of ‘no net loss’ goes beyond the maintenance of biodiversity and is particularly dangerous where clearance as part of normal farming activity involves the loss of non-indigenous biodiversity; also biodiversity offsets are an incredibly difficult concept to define, especially when the NPS indicates these should achieve a net gain of biodiversity.

 

There are no doubt justifiable concerns on both sides of this debate, but the two Ministers directly concerned need to ensure the NPS recognises the importance of hill country farming to the regional and national economy, while pursuing the laudable objective of maintaining biodiversity.

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