Proposed Policy Statement on Biodiversity

By Cath Wallace and Shane Orchard

The government has produced a Proposed National Policy Statement (NPS) on Biodiversity. ECO welcomes the release of the indigenous Biodiversity NPS which has been under preparation for many years. Many of its provisions are good, with some useful principles and measures. The scope however is limited, partly by virtue of the effects basis of the RMA, and partly because the NZ Coastal Policy Statement and other such statements may have been regarded as already covering the territory. Some worries remain and the provisions will need careful scrutiny.The Proposed NPS sets out objectives and eight policies to manage natural and physical resources so as to maintain (but not to restore or enhance) indigenous biological diversity under the Resource Management Act 1991 (RMA). It seeks to strengthen the contribution the RMA makes to halting the decline of biodiversity. As a tool, the NPS remains subject to Part 2 of the Act and its role is designed to be a relevant consideration for decision makers to weigh alongside other matters in achieving the sustainable management purpose of the Act.

This proposed NPS would apply to land owned by any person except that it does not apply to public conservation land nor to the coastal marine area (ie from mean high water springs to 12 nautical miles offshore). That is of concern if it means that conservation-owned land is not protected by biodiversity objectives in the event that it is not otherwise formally protected if resource consent applications are made over that land. The exclusion of the coastal marine area is also a concern.

The status of aquatic ecosystems is unspecified, but it seems to be restricted to exclude marine and coastal biodiversity, presumably because the NZ Coastal Policy Statement (NZCPS) has been issued. The Proposed Biodiversity NPS emphasizes Section 6(c) of the RMA but it could be re-fashioned to include a broader scope of non-terrestrial biodiversity such as the inhabitants of marine and coastal areas as well as land-dwelling species.

The main purposes of the Indigenous Biodiversity NPS are to:

bring more clarity to the role of local authorities in biodiversity management under the RMA than may be apparent on the face of the Act itself;
support the existing good work of local authorities to date and secure the gains made in terms of regional and local planning responses;
encourage local authorities that operate below the level of best practice to enhance their efforts by introducing a “bottom-line” category of site whose values are to be recognised and protected through the RMA; and
help decision-makers appropriately to balance the protection of biodiversity, the interests and values of tangata whenua, the rights and responsibilities of landowners and the broader national interests that may be at stake in future resource management decision-making.
The reference to national interests could signal a willingness to sacrifice biodiversity for so-called “national interest” purposes, such a fast tracked projects under the Environmental Protection Authority Act.
Section 6(c) of the RMA requires consideration of “the protection of areas of significant indigenous vegetation and significant habitats of indigenous fauna”. The proposed NPS is a set of (minimum) criteria for the identification of ‘areas of significant vegetation’ and ‘significant habitat of indigenous fauna’. Under this NPS local authorities would be required to identify ‘areas of significant vegetation’ and ‘significant habitat of indigenous fauna’, and these include:
naturally uncommon ecosystem types, for which a list is provided;
indigenous vegetation or habitats associated with sand dunes;
indigenous vegetation or habitats associated with wetlands;
land environments, defined by Land Environments of New Zealand at Level IV (2003), that have 20 per cent or less remaining in indigenous vegetation cover; and
habitats of threatened and at risk species.
What the NPS doesn’t say is how those areas can be protected if within city limits, given the removal of protection from urban ecosystems by the current government and its replacement with single identified tree protection rules only.
Based on the significance test, local authorities must then manage the effects of activities through district and relevant regional plans (or be satisfied that the effects are managed by methods outside of district or regional plans). This is to ensure ‘no net loss’ of biodiversity of areas of significant indigenous vegetation and significant habitats of indigenous fauna.
Offsetting harm to indigenous biodiversity with benefits elsewhere is provided for in the NPS. This is problematic, given it may allow destruction of biodiversity to be then offset by some action to “protect” somewhere else not under threat anyway. The Proposed NPS specifies that local authorities will need to take full account of residual adverse effects in decision-making processes under this NPS, and that in practice there are limits to what can be offset because some vegetation, habitats and ecosystems are vulnerable or irreplaceable. In such circumstances offsetting would not be a possible for meeting the policies of the NPS, and the NPS provides further guidance on this matter to assist interpretation. This is a useful restriction on the use of offsetting, but the whole provision requires scrutiny.
The proposed NPS also addresses outcomes for the maintenance of biodiversity outside of identified areas of significant indigenous vegetation and significant habitats of indigenous fauna. These include a general intention to encourage the retention of as many elements as possible and to reduce as many adverse effects as possible, but also to outline some more specific goals.
Amongst the latter are:
the use of naturally occurring, locally sourced indigenous species in plantings;
the establishment of additional indigenous riparian vegetation as a means of increasing connectivity and enhancing freshwater habitat for indigenous species; and
ensuring human-made structures do not adversely impact on indigenous species by interfering with their natural migratory movements. That could be important in that, for instance, it might influence the siting of installations such as power stations or wind turbines.
The need to recognise and provide for the role of tangata whenua as kaitiaki is recognised under Policy 7 of the proposed NPS. Practical aspects include that tangata whenua values and interests are to be incorporated into the management of biodiversity. When considering environmental outcomes, this will have a significant influence.
The WAI 262 Report by the Waitangi Tribunal regarding claims to biodiversity and conservation governance, is due to be issued in the week of 2 May 2011. The Proposed NPS has been drafted without the benefit of that much delayed report. Sadly, the deadline for submissions is exactly the same week that the WAI 262 report is to be issued, so there will be no chance for submitters to integrate thinking about these before submissions are due. The government has indicated that it will consider the WAI 262 report before it determines what to do about the NPS.
Member groups and others will need to give the Proposed NPS careful scrutiny, and make submissions. There are some positive aspects to the Proposed NPS and it will be important to support these. An example is its focus on indigenous biodiversity, not biodiversity in general.
On the down side, issues of concern that have already been identified by ECO and others include:
Limited Scope:
The limited geographic scope of the Proposed NPS, in particular, its terra-centric scope, with the exclusion of the coastal marine area, which is a large chunk of the RMA’s scope (which includes the territorial sea to 12 nautical miles).
A useful but lop-sided emphasis on native vegetation, with rather muted attention to native fauna, and little attention to the fungal and microbial systems.
The ambiguity regarding its application to freshwater ecosystems and other aquatic elements of biodiversity.
The exclusion of public conservation land.
Lack of Ambition
The ambition of the biodiversity NPS is limited to the “maintenance” of biodiversity, a much lesser goal than the “restoring the dawn chorus” goal that DOC had, or say, the enhancement of native biodiversity. Restoration is desirable, and pest control, fencing and other such are means to it, but may well not be covered by this NPS. Enhancement can be achieved by the re-introduction of species and habitats, but again is beyond the ambition of this NPS.
Since the basis of the NPS is the RMA, it thus sets out to control adverse effects, rather than encourage or require actions to protect biodiversity. As such it is passive- reactive rather than pro-active. Encouragement of councils and land owners may be possible, but it is not a primary focus.
Process
The Proposed Indigenous Biodiversity NPS is not automatically to be given effect by councils immediately. Rather, it is to be a gradual process. One can appreciate the difficulties of requiring all councils to change their Plans simultaneously, but gradual adoption will leave open scope for strategic behaviour in which biodiversity not already protected may be destroyed preemptively.
Off-setting
The government has bowed to pressure from economic interests in allowing offsets. This permits damage in one place on condition that it is “offset” elsewhere. It is a potentially dangerous provision because in reality it can often mean that one area or part of biodiversity can be wrecked in return for “protecting” an area that was never under threat anyway. The drafters of the Proposed NPS have provided Schedule 2 to the NPS that is designed to provide some tests and principles to limit the scope of such offsetting. That is welcome, and some of the principles are good.
Finally, the Environment Minister Nick Smith has decided that the proposal will not be sent to a Board of Inquiry for scrutiny. That is unfortunate, since such deliberative processes as hearings can allow ideas to be tested and debated, whereas Smith is simply inviting submissions to be sent to officials at the Ministry for the Environment and they will then report to him. He will decide then what to do. This approach leads to politicization of the NPS and policy instability with changes of government – such a process has little merit for the long-term security of biodiversity.
ECO welcomes comments and analysis from member bodies and others with an interest. Send these to ECO by email, with Biodiversity NPS in the subject line.
The Policy and related documents can be found here.
(republished from the March 2011 issue of ECO link)