Legislation

There are a number of pieces of legislation in New Zealand that are designed to protect biodiversity. The following table summarises the legislation.

Legislation

Admininstered By

Key Elements

Conservation Act 1987

Department of Conservation

  • Establishment of conservation areas
  • Preparation of statements of general policy, conservation management strategies and conservation management plans
  • Creation of marginal strips on sale or deposition of Crown land
  • Granting of concessions in conservation areas
  • Management of indigenous freshwater fisheries, including the whitebait fishery
  • Management agreements
  • Conservation agreements

National Parks Act 1980

Department of Conservation

  • Establishment and management of national parks

Reserves Act 1977

Department of Conservation

  • Establishment and management of land-based reserves
  • Conservation covenants

Crown Pastoral Land Act 1998

Land Information New Zealand

  • Control of activities on high country leasehold land
  • Tenure review and transfer of land into freehold and conservation land, including provisions for protective mechanisms on freehold land

Queen Elizabeth the Second National Trust Act 1977

Queen Elizabeth the Second National Trust

  • Creation and administration of open space covenants on privately-owned land

Forests Act 1949

Ministry for Primary Industries

  • Control of logging, milling and export of indigenous timber
  • Providing standards for sustainable logging
  • Granting sustainable forest management plans and permits

Overseas Investment Act 2005

Overseas Investment Office

  • Consideration of whether there will be adequate mechanisms in place for protecting or enhancing existing areas during sale of New Zealand land to overseas investors

Resource Management Act 1991

Local government 

  • Providing protective provisions in plans
  • Creating esplanade reserves and strips
  • Requiring financial contributions
  • Environmental compensation and biodiversity offsets

Local Government Act 2002

Local government

  • Funding local government activities
  • Charging development contributions

Wildlife Act 1953

Department of Conservation

  • Protecting a range of identified wildlife
  • Establishing wildlife sanctuaries, refuges and management reserves
  • Providing for population management plans to address fishing-related mortality

Trade in Endangered Species Act 1989

Department of Conservation

  • Requiring permits for import and export of endangered species

Native Plants Protection Act 1934

Department of Conservation

  • Enabling native plant species to be protected

Conservation Act

The purpose of the Conservation Act, as expressed in its long title, is ‘to promote the conservation of New Zealand’s natural and historic resources, and for that purpose to establish a Department of Conservation’. As well as establishing the Department of Conservation, the legislation provides for the creation of conservation areas. These are areas of Crown-owned land which are declared to be held for ‘conservation purposes’ (section 7).

Conservation areas

Conservation areas may be given specific protection requirements through their designation as a conservation park, wilderness area, ecological area, sanctuary area, amenity area, or wildlife management area. Land which is adjacent to a waterbody, which is subject to a water conservation order or which has outstanding wild, scenic, or other natural or recreational characteristics, can be held for the purpose of a watercourse area. The management requirements attached to each of these designations is shown in the table below.

Protection Status

Management Requirements 

Conservation Park

  • Natural and historic resources to be protected
  • Subject to the above, public recreation and enjoyment to be facilitated

Wilderness Area

  • Indigenous natural resources to be preserved
  • No building or machinery to be erected
  • No building, machinery or apparatus to be constructed or maintained
  • No livestock, vehicles, or aircraft to be taken onto or used
  • No roads, tracks or trails to be constructed

Ecological Area

  • Protect the value for which it is held

Sanctuary Area

  • Preserve the indigenous plants and animals in their natural state for their scientific or similar purpose

Amenity Area

  • Protect its indigenous natural resources and its historic resources
  • Subject to the above, to contribute to and facilitate people’s appreciations of its indigenous natural resources and its historic resources
  • Subject to all of the above, to foster the recreational attributes of the area

Wildlife management area

  • Protect its wildlife (meaning any native animal) and wildlife habitat values (including the capacity for movement of wildlife, genetic material of indigenous plants, and genetic material of wildlife)
  • Protect its indigenous natural resources and its historic resources

Watercourse Area

  • Protect the wild, scenic, and other natural or recreational characteristics that it has when considered with the river, lake or stream concerned
  • Management to be coordinated, so far as is practicable, with the administration and management of other watercourse areas

The Conservation Act sets out how conservation areas are to be managed. This must be in accordance with statements of general policy, conservation management strategies, conservation management plans and freshwater fisheries management plans prepared under the same legislation (section 17A). In addition, an area which has a specific designation, as described above, must be managed in accordance with that designation. Every conservation area will be subject to a conservation management strategy and may have a conservation management plan in place. You can view conservation management plans and conservation management strategies on the DOC website.

Steward Island/ Rakiura Conservation Management Strategy and Rakiura National Park Management Plan (Credit: Department of Conservation)

Concessions

The Minister of Conservation can grant concessions for activities undertaken in conservation areas under the Conservation Act. These often provide for eco-tourism activities or sports events. Any person may apply for such a concession. Applications for concessions lasting more than ten years must be publicly notified and members of the public can make submissions on them. Activities within conservation areas can impact on the biodiversity living there, and this means that the grant of concessions needs to be managed carefully to ensure that biodiversity values of the areas are maintained. The Minister is required to consider a range of factors when deciding whether or not to grant the concession (section 17U) which include:

  • The effects (positive and adverse) of the activity, structure or facility
  • Any measures that can reasonably and practicably be undertaken to avoid, remedy, or mitigate any adverse effects of the activity
  • Any relevant environmental impact assessment, including any audit or review
  • Any relevant oral or written submissions received

Every year the Department of Conservation receives numerous applications for concessions. From 2006 to 2014, the total number of active concessions grew by 30%.  There were 4470 active concessions in 2014. 5125

Marginal strips

Marginal strips are established under the Conservation Act (section 24) to protect areas adjacent to water bodies and to enable appropriate public access to these areas. These are usually 20 metre-wide riparian areas which extend along and abut the landward margin of the foreshore, the normal level of the bed of any lake not subject to control by artificial means, or the bed of any river or any stream which has an average width of three metres or more. Marginal strips must be reserved from the sale or other disposition of Crown land.

Freshwater Fisheries Regulations 1983

These regulations under the Conservation Act control a wide range of matters. Notable are regulations that prohibit creation of fish passage barriers without authorisation from the Director-General, and that allow the creation of faunistic reserves (which prohibit all fishing within them).  The regulations and the Act (section 26ZM) also control all movement of aquatic life between waterbodies and electric fishing. The regulations set out when fish can be taken (full protection is only provided to one extinct fish species).

Following the 2013 National Fish Passage Symposium, DOC and NIWA have agreed to work in partnership over the next few years to lead the development of national resources to support fish passage management.

This will include:

  • Development of national fish passage management guidelines
  • Improving access to resources for management of fish passage
  • Establishing a national fish passage assessment protocol
  • Identifying research gaps and priorities
  • Establishing a national multi-agency fish passage advisory group to represent interested parties and to provide input into the process of developing these resources

National Parks Act 1980

The purpose of the National Parks Act is ‘preserving in perpetuity as national parks, for their intrinsic worth and for the benefit, use, and enjoyment of the public, areas of New Zealand that contain scenery of such distinctive quality, ecological systems, or natural features so beautiful, unique, or scientifically important that their preservation is in the national interest’ (section 4(1)).

New Zealand currently has 14 national parks throughout the country and these include some of New Zealand’s most iconic protected areas. The Act sets out principles to be applied to the management of national parks in section 4, and these include achieving the purpose as set out above, preserving the parks ‘as far as possible in their natural state’, and exterminating introduced plants and animals as far as possible. Subject to the management principles, the public are to ‘have freedom of entry and access to the parks, so that they may receive in full measure the inspiration, enjoyment, recreation, and other benefits that may be derived from mountains, forests, sounds, seacoasts, lakes, rivers, and other natural features’ (section 4(2)(e)).

As well as providing an invaluable resource for biodiversity protection, national parks underpin New Zealand’s international tourism industry. About a third of international tourists visit at least one national park during their time in New Zealand. During 2012, 338,700 international tourists visited the Fiordland National Park (the most popular), with 288,800 visiting Westland National Park and 155,700 visiting Aoraki/Mount Cook National Park. 2540

Mount Cook National Park is one of 14 national parks around New Zealand (Credit: Raewyn Peart)

Reserves Act

Protected areas called ‘reserves’ can be established under the Reserves Act. Reserve land is categorised on the basis of its primary purpose as either recreation, historic, scenic, nature, scientific, government purpose or local purpose reserves. Each reserve which is vested in, or controlled and managed by, an administering body such as a local authority is required to have a reserve management plan and to be managed in accordance with the purpose for which it is classified.

Type of Reserve

Primary Purpose

Recreation

  • Providing areas for the recreation and sporting activities and the physical welfare and enjoyment of the public, and for the protection of the natural environment and beauty of the countryside, with emphasis on the retention of open spaces and on outdoor recreational activities, including recreational tracks in the countryside.

Historic

  • Protecting and preserving in perpetuity such places, objects, and natural features, and such things thereon or therein contained as are of historic, archaeological, cultural, educational, and other special interest.

Scenic

  • Protecting and preserving in perpetuity for their intrinsic worth and for the benefit, enjoyment, and use of the public, suitable areas possessing such qualities of scenic interest, beauty, or natural features or landscape that their protection and preservation are desirable in the public interest, or
  • Providing in appropriate circumstances, suitable areas which by development and the introduction of flora, whether indigenous or exotic, will become of such scenic interest or beauty that their development, protection, and preservation  are desirable in the public interest

Nature

  • Protecting and preserving in perpetuity indigenous flora or fauna or natural features that are of such rarity, scientific interest or importance, or so unique that their protection and preservation are in the public interest

Scientific

  • Protecting and preserving in perpetuity for scientific study, research, education, and the benefit of the country, ecological associations, plant or animal communities, types of soil, geomorphological phenomena, and like matters of special interest

Government Purpose

  • Providing and retaining areas for such Government purpose or purposes as are specified in any classification of the reserve

Local Purpose

  • Providing and retaining areas for such local purpose or purposes as are specified in any classification of the reserve

Conservation covenants

The Reserves Act also provides for the creation of conservation covenants. A covenant is a legal agreement between a landholder and a covenanting agency and this can set out how an area’s natural values will be protected. This is a legal contract between a landowner and a third party that outlines the way the land will be managed. Entry into such agreements is usually voluntary, but the agreement can be binding in perpetuity if it is included on the property title. Land covenants have grown in popularity in recent years and highlight a very real commitment by many landowners to protect indigenous biodiversity on their land.

The Minister of Conservation, any local authority, or any other approved body, may enter into a covenant with a landowner to provide for the management of that land in a manner that will preserve the natural environment, landscape amenity, wildlife, freshwater life, marine life or historical value. A conservation covenant may be in perpetuity or for a specific term (section 77 of the Reserves Act). Once a conservation covenant is in place the ‘offences’ contained in the Reserves Act apply to the land as if it was a reserve (section 77 of the Reserves Act).

Crown Pastoral Land Act 1998

There are three main types of land tenure in the high country that are relevant to biodiversity management, being:

  • Public conservation land – land owned by the Crown, and managed and administered by the Department of Conservation on behalf of the public.
  • Private land – private rural land is normally held in freehold title. Freeholding removes the need for Crown consent for a range of land management activities
  • Crown leasehold land – the Crown purchased much of the South Island high country from Ngāi Tahu during the 1840s and 1850s. 2550  Under the Land Act 1948, the Crown retained ownership of the land, with farmers being granted 33-year perpetually renewable pastoral leases. There are also Pastoral Occupation Licences and Special Leases with no right of renewal and the legislative provisions are subtly different for each of these.

The concept behind the Crown leasehold approach is that the lessee (farmer) has long-term certainty of tenure, but that the government can place conditions on the use of these fragile lands. In January 2018, there are approximately 1.4 million hectares of high country in pastoral leasehold tenure.  Lessees also require the Crown Commissioner’s consent to undertake a range of activities on the land including burning any part of the land, planting any trees or felling any bush or scrub.

During the 1990s, a process commenced to review some of the high country leases. This resulted in farmers obtaining freehold title over part of the land, with the remainder being incorporated into the conservation estate and managed by the Department of Conservation. The process was formalised under the Crown Pastoral Land Act.

To date, one of the main outcomes of the tenure review process has been that the relatively productive lower altitude terraces, fans and basins have been placed in freehold ownership, while the colder, steeper, higher altitude tussock grasslands have become public conservation land. 2551

 As of January 2018, the government has taken 119 pastoral leases through tenure review, covering about 620,000 hectares. The Crown has retained 300,000 hectares. The majority of the land has been given to conservation purposes. However, most of this land is in the higher altitudes. This indicates that the opportunity to preserve entire altitudinal sequences has generally not been taken, making it more difficult to preserve biodiversity within these high country grassland ecosystems.

Queen Elizabeth the Second National Trust Act 1977

The Queen Elizabeth the Second National Trust Act 1977 has the general function ‘to encourage and promote, for the benefit and enjoyment of the present and future generations of the people of New Zealand, the provision, protection, preservation, and enhancement of open space’ (section 20(1)). The Act also establishes a National Trust Fund which serves as a recipient of funding from the government and other sources including private donations.

Open space covenants

The main mechanism available to the QEII Trust to achieve its functions is the establishment of open space covenants over private land. A covenant is a legal agreement between a landholder and a covenanting agency and this can set out how an area’s natural values will be protected. This is a legal contract between a landowner and a third party that outlines the way the land will be managed. Entry into such agreements is usually voluntary, but the agreement can be binding in perpetuity if it is included on the property title. Land covenants have grown in popularity in recent years and highlight a very real commitment by many landowners to protect indigenous biodiversity on their land.

Open space covenants are designed to preserve any landscape of aesthetic, cultural, recreational, scenic, scientific, or social interest or value. These have the effect of constraining the uses which may be made of the land which is subject to the covenant, normally excluding activities such as vegetation clearance, subdivision and development. The covenants are registered on the title and bind future land owners in perpetuity. The QEII Trust monitors adherence to the conditions of the covenants.

More than 3400 landowners are protecting over 110,000 hectares of natural and cultural heritage with QEII Trust covenants. The QEII Trust also owns 29 properties, which collectively protect 1,686 hectares of significant habitat. The properties have mostly been gifted. In addition to the legal covenant, the QEII Trust offers assistance with fencing costs, survey costs and practical advice.

Local authorities often provide rates relief in order to encourage property owners to protect and preserve open spaces for the benefit and enjoyment of present and future generations. The Local Government (Rating) Act 2002 provides that certain land is non-rateable, including QEII Trust land and land which is owned by a society or association, which is used for conservation purposes and not for private profit, and which is able to be accessed by the general public (section 8). However, targeted rates for water supply, sewage disposal, or refuse collection are payable (section 9).

For more information go to the QEII Trust website.

Forests Act 1949

Logging of indigenous forest on private land for timber production is controlled by the Forests Act 1949. A major amendment to this legislation in 1993 provided a regime to manage the sustainable logging of privately-owned forests. Timber may not be felled except in accordance with a sustainable forest management plan or permit, which is approved by the Minister for Primary Industries. The export of the timber is also unlawful unless it was taken in accordance with a registered sustainable forest management plan or permit (section 67C) and Schedule 2 of the Forests Act sets out the requirements for sustainable logging practices.

Overseas Investment Act 2005

The Overseas Investment Act requires consent to be gained for a transaction that will result in the acquisition of sensitive land by an overseas person (section 12). The Act lists a number of factors which should be considered when assessing the benefit to New Zealand of an overseas investment in sensitive land. These include whether there are or will be adequate mechanisms in place for protecting or enhancing existing areas of:

  • Significant indigenous vegetation
  • Significant habitats of indigenous fauna
  • Significant habitats of trout, salmon, wildlife protected under the Wildlife Act and game as defined in the Wildlife Act
  • Walking access to those habitats by the public or any section of the public (section 17)

Wildlife Act

The Wildlife Act, administered by the Department of Conservation, protects all ‘wildlife’ in New Zealand apart from the species identified in schedules 1 to 6 of the Act as shown below. This means that the default position is that wildlife cannot be hunted unless specifically provided for in the schedules.

Wildlife

The term ‘wildlife’ is defined to mean ‘any animal that is living in a wild state’, with some specific exceptions. The definition of ‘animal’, however, does not include all New Zealand’s fauna. It includes:

  • All mammals, excluding domestic animals, rabbits, hares and marine mammals
  • All birds, excluding domestic birds
  • All reptiles
  • All amphibians
  • Invertebrates and marine species that are declared to be wildlife 

Schedule

Species

Schedule 1 – Wildlife declared to be game

Includes the black swan, four species of duck, partridge, pheasant, pukeko and three species of quail (although not those on the Chatham Islands)

Schedule 2 – Partially protected wildlife

Includes the brown skua, little owl and silvereye, Landowners are permitted to hunt these if they are causing damage.

Schedule 3 – Wildlife that may be hunted or killed subject to Minister’s notification

Includes a range of species on the Chatham Islands as well as three species of shag, sooty shearwater and weka. These may only be hunted if the Minister has given participation through formal notification.

Schedule 5 - Wildlife not protected

Includes a range of introduced species including cats, dogs, cattle, horses, mustelids and introduced birds, three species of dog, a skink and turtle

Schedule 6 – Animals declared to be noxious animals

Includes 10 species of deer, possum, wallaby, goat, pig and Himalayan Tahr

Additional invertebrates have also been included under the protection of the legislation and these are listed in schedule 7. They include specific species of snails, spiders, beetles, weevils, grasshoppers and weta. Schedule 7A sets out marine species which are protected and these include black, gorgonian, and stony corals, as well as hydrozoa (hydra-like animals). Five species of shark are protected (the oceanic whitetip shark, basking shark, deepwater nurse shark, white pointer shark and whale shark). Two rays are protected (manta ray and spinetail devil ray). Somewhat surprisingly, only two species of bony fish are protected; the giant grouper and spotted black grouper.

Offences

It is an offence to hunt or kill protected wildlife. However, protected species may be captured, injured or killed inadvertently or as part of a fishing operation and the legislation provides a defence against prosecution when this happens, so long as the incident is reported to the relevant authority.

Wildlife Sanctuaries

The Wildlife Act makes provision for the establishment of wildlife sanctuaries (where all wildlife is absolutely protected unless there is any provision to the contrary in a Proclamation), wildlife refuges and wildlife management reserves which may be proclaimed by the Governor-General and have rules restricting activities attached.

Population Management Plans

The Act also makes provision for the development of population management plans where fishing activity inadvertently results in the death of protected species. This is primarily targeted at the protection of seabirds which can become entangled in fishing gear such as hooks, lines and nets. The plans are designed to identify the maximum allowable level of fishing-related mortality for the species, which would allow the following two criteria to be met:

  • For threatened species, the mortality level ‘should allow the species to achieve non-threatened status as soon as reasonably practicable, and in any event within a period not exceeding 20 years’.
  • For other marine wildlife, the mortality level ‘should neither cause a net reduction in the size of the population nor seriously threaten the reproductive capacity of the species’.

No population management plans have yet been approved under these provisions.

Trade in Endangered Species Act 1989

This legislation implements New Zealand’s obligations under CITES. It has the object to enable New Zealand to fulfill its obligation under CITES and to promote ‘the management, conservation, and protection of endangered, threatened and exploited species to further enhance the survival of those species’ (section 2). The Act is administered by the Director-General of Conservation. 

It establishes a permitting system for trade in species included in the Schedules in the Act, which identify species endangered, threatened and exploited by trade and reflect those listed in CITES.

Native Plants Protection Act 1934

This old and little used piece of legislation is still law and allows the Governor-General to declare that native plant species are to be protected. It is an offence for any person to take any protected native plant ‘growing on any Crown land, or in any State forest land or public reserve, or on any road or street’. In addition, any person who ‘without the consent of the owner or occupier of any private land, takes any protected native plant that is growing thereon’, commits an offence. The penalties provided in the legislation are so low – a maximum of $10 for a first offence, $20 for a second offence and $40 for subsequent offences – that it provides no real deterrent.

Resource Management Act

The management of many of the effects of human activities on biodiversity in New Zealand is undertaken within the framework of the RMA. Biological diversity is defined in section 2 of the Act to mean ‘the variability among living organisms, and the ecological complexes of which they are a part, including diversity within species, between species, and of ecosystems’. The overarching purpose of the RMA is the sustainable management of natural and physical resources. It establishes a framework for the integrated management of air, land, freshwater and marine areas. This framework is described in detail elsewhere on this website.

Purpose, Principles and Functions

Purpose of the RMA

Section 5 of the RMA establishes the purpose of the Act, which is ‘to promote the sustainable management of natural and physical resources’. This is further defined to include:

(a) Sustaining the potential of natural and physical resources (excluding minerals) to meet the reasonably foreseeable needs of future generations; and
(b) Safeguarding the life-supporting capacity of air, water, soil and ecosystems; and
(c) Avoiding, remedying or mitigating any adverse effects on the environment.

The term “biodiversity” is not directly used, however, it is indirectly managed through all matters of Section 5(2). All forms of plants and animals (whether native to New Zealand or introduced) fall within the RMA’s definition of natural and physical resources. Therefore, natural and physical resources need to be managed while sustaining the potential of all forms of plants and animals to meet the reasonably foreseeable needs of future generations. Natural and physical resources also need to be managed while safeguarding the life-supporting capacity of air, water, soil and ecosystems.

Matter of national importance

Section 6 of the RMA identifies matters of national importance which decision-makers are required to recognise and provide for. Two section 6 matters have particular relevance to the management of biodiversity:

Section 6(a): The preservation of the natural character of the coastal environment (including the coastal marine area), wetlands, and lakes and rivers and their margins, and the protection of them from inappropriate subdivision, use and development.

Section 6(c): The protection of areas of significant indigenous vegetation and significant habitats of indigenous fauna.

The term “biodiversity” is not included in this list of matters, although it is indirectly managed by protecting natural character, outstanding natural features and landscapes, and the protection of indigenous vegetation and habitats of indigenous fauna. The term outstanding natural features and landscapes is not defined by the RMA.

Other matters

The RMA identifies a set of ‘other matters’ in section 7 to which decision-makers are required to ‘have particular regard’. Many section 7 matters have particular relevance to the management of biodiversity including kaitiakitanga (section 7(a)) and the intrinsic values of ecosystems (section 7(d)).

Esplanade reserves are essential for providing public access to and along the coastal marine area (Credit: Raewyn Peart)

Council functions

Regional and district councils have explicit functions related to indigenous biodiversity. Regional Council are required to establish, implement, and review objective, policies, and methods for maintaining indigenous biodiversity (section 30(1)(ga)) and district councils are required to control actual or potential effects of the use, development, or protection of land for the purpose of the maintenance of indigenous biodiversity (section 31(1)(b)(iii)).

National Policy Statements

National policy statements enable central government to prescribe objectives and policies on resource management matters of national significance, relevant to achieving the purpose of the RMA. National policy statements are important tools to provide a higher level of government direction in the plan making process. It is mandatory that regional policy statements, regional plans and district plans give effect to national policy statements (sections 62(3), 67(3) and 75(3)). Consent authorities must also have regard to any relevant national policy statements when considering an application for a resource consent (section 104(1)(b)) or water conservation order (section 207(c)) and a requirement for a designation (section 171(1)(a)) or heritage order (section 191(1)(d)).

In 2018, a National Policy Statement for indigenous biodiversity is being drafted through a stakeholder-led collabortive process. The Biodiversity Collaborative Group is to make recommendations for supporting measures for terrestial, freshwater and coastal biodiversity on public and private lands. The core members of the group are: Royal Forest and Bird Protection Society of New Zealand Inc, Federated Farmers of New Zealand Inc, New Zealand Forest Owners Association, Environmental Defence Society Incorporated, Iwi Chairs Forum and representatives from infrastructrue industries. The Ministry for the Environment are active observers of the process along with the Ministry for Primary Industries, Te Puni Kōkiri, Department of Conservation, Land Information New Zealand, and representatives from regional and unitary councils.The first draft is due in late 2018. For more information regarding the process, see their website here

Two other national policy statements have provisions which are important for biodiversity management; the New Zealand Coastal Policy Statement and the National Policy Statement for Freshwater Management. These are discussed in the coastal and freshwater sections of this website.

RMA policy statements and plans

When preparing policy statements and plans councils should consider the following matters:

  • Actual outcomes of current policy and the gaps in policy when compared with the council’s aims
  • Extent and condition of the indigenous biodiversity remaining within the region or district
  • Actual and potential threats and other issues that affect that biodiversity
  • Opportunities for preventing biodiversity loss and promoting its recovery where it has been damaged
  • Likely future patterns in land use and other economic activity, and how these patterns and activity may affect biodiversity values within the life cycle of the policy
  • Policies and other guidance about national priorities
  • Underlying level of community understanding and support for indigenous biodiversity

When implementing policy statements are plans councils should consider the following matters:

  • Developing plans in consultation with consents staff to help ensure the provisions can be effectively implemented
  • Preparing a plan implementation strategy
  • ‘Field-testing’ policies
  • Developing guidelines and training for consents and enforcement staff
  • Developing a formal checklist for planners to help them identify matters that need to be addressed for different types of applications and in different environments
  • Developing consent condition templates designed to address different types of habitat and activity
  • Forming or joining regional (and district) biodiversity forums to share information and ideas

Regional Policy Statements

Regional policy statements, which are prepared by regional councils under the RMA, are designed to provide an overview of resource management issues throughout the region and to identify policies and methods to achieve the integrated management of natural and physical resources (section 59). This enables a strategic and integrated approach to be applied to biodiversity management, which can be considered on a region-wide basis.

The following provides a checklist for possible contents of a regional policy statement related to biodiversity protection:

  • Are all the key biodiversity issues and threats within the region and within the scope of regional policy statement included?
  • Do the provisions give effect to all relevant national policy statements?
  • Will the provisions achieve the maintenance of indigenous biodiversity generally?
  • Have areas of indigenous vegetation and habitats that are regionally significant been identified (including those in the terrestrial, freshwater, coastal and marine habitats?)
  • Have the main threats to the ecological health of these areas been identified?
  • Do the provisions provide for the protection of significant indigenous biodiversity?
  • Are there objectives related to all the key values, habitats and species?
  • Is clear direction given for formulating regional and district plan objectives, policies and rules to protect biodiversity?
  • Do the policies and methods provide for adequate management of the main threats to biodiversity?
  • Are priority areas for restoration identified?
  • Are the different roles of the regional council and the territorial authorities for biodiversity protection clearly defined?
  • Is an integrated approach adopted which addresses terrestrial, freshwater, coastal and marine biodiversity on a catchment basis?
  • Does it provide for a range of methods (excluding rules)?
  • Is a monitoring programme identified and is it adequate to identify the health and extent of areas of indigenous vegetation, significant habitats, indigenous ecosystems and threatened species and changes to their status?

Case Study: Waikato Regional Policy Statement 2014

The Waikato Regional Policy Statement is a second-generation RPS which reflects more up-to-date thinking about biodiversity management. In particular, there is a focus on achieving no net loss of biodiversity at a regional level, rather than simply focusing on protecting significant biodiversity areas.

It aims to “Promote positive indigenous biodiversity outcomes to maintain the full range of ecosystem types and maintain or enhance their spatial extent as necessary to achieve healthy ecological functioning of ecosystems”.  Particular focus will be directed toward “achieving no net loss of indigenous biodiversity at a regional scale”.

Methods provide for the management of adverse effects on indigenous biodiversity. Where the biodiversity is identified as significant, avoidance of adverse effects is to be preferred to remediation or mitigation and any more than minor residual effects must be offset to achieve no net loss. Where the biodiversity is not identified as significant, adverse effects must be avoided, remedied or mitigated and any significant residual adverse effects should be offset to achieve no net loss. Local indigenous biodiversity strategies will assist in determining the regulatory and non-regulatory framework for achieving no net loss at a regional scale. 

Regional Plans

Regional councils must prepare a regional coastal plan which specifically addresses activities in the coastal marine area. A regional council may prepare other regional plans for the whole or part of its region to address its RMA functions (section 65(1)).

The following provides a checklist for possible contents of a regional plan related to biodiversity protection:

  • Are all the key biodiversity issues and threats related to the scope of the plan included (for example, does a freshwater plan cover effects of land use activities and effects of channelisation and gravel removal, as well as water takes and point source discharges)?
  • Are all the values effectively mapped?
  • Are there objectives related to all the key values, habitats and species?
  • Are there clear limits on uses that will achieve those objectives (such as limits on water takes, discharges and vegetation clearance)?
  • Do the limits have teeth (for example, breaching them is a prohibited activity)?
  • Are the methods included the best ones to achieve the objectives? Will they be effective?
  • What activities are permitted? Could those activities be contrary to the objectives?
  • What consents are required and do decision-makers have sufficient discretion to address impacts on biodiversity? Can a consent be declined or only conditions placed on it?
  • Are the rules sufficiently tight to ensure that the objectives can be met, taking into account any activities which are likely to be permitted or consented under the plan?
  • Has an integrated approach applying to the whole catchment and marine area been adopted?
  • Are a range of statutory and non-statutory methods provided for, including provision for financial incentives and support for landowners and voluntary community groups restoring biodiversity?
  • Has a monitoring programme been defined and is it adequate to identify the health and extent of areas of indigenous vegetation, significant habitats, indigenous ecosystems and threatened species, including those in freshwater and the marine area, and changes to their status?

The following provides a checklist for possible contents of a regional coastal plan related to biodiversity protection:

  • Is the landward extent of the coastal environment identified on maps?
  • Does the plan direct major uses to the most appropriate locations within the coastal area, or to locations outside the coastal environment?
  • Are all the key biodiversity issues and threats related to the scope of the plan included?
  • Are all the values effectively mapped?
  • Are areas of coastal indigenous vegetation and significant coastal habitats that are regionally significant spatially identified?
  • Are there objectives related to all the key values, habitats and species?
  • Are there clear limits on uses that will achieve those objectives (such as catchment-based limits on discharges of sediment into the marine area)?
  • Do the limits have teeth (for example, breaching them is a prohibited activity)?
  • Are the methods included the best ones to achieve the objectives? Will they be effective?
  • What activities are permitted? Could those activities be contrary to the objectives?
  • What consents are required and do decision-makers have sufficient discretion to address impacts on coastal biodiversity? Can they decline a consent or only put conditions on it?
  • Are the rules sufficiently tight to ensure that the objectives can be met, taking into account any activities which are likely to be permitted or consented under the plan?
  • Is the approach consistent with other regional plans (such as freshwater)?
  • Has an integrated approach to managing biodiversity across the land-marine boundary been adopted?
  • Are a range of statutory and non-statutory methods promoted, including establishment and support for beach and coast care groups?
  • Has a coastal biodiversity monitoring programme been defined and is it adequate to monitor the health and extent of areas of coastal indigenous vegetation, significant habitats, indigenous ecosystems and threatened species and changes to their status?

District Plans

A territorial authority (city or district council) must prepare a district plan for its district (section 72). The purpose of district plans is to assist territorial authorities in carrying out their functions under the RMA (section 72).

District plans are focused on managing the effects of land use. Land use can impact on biodiversity through activities such as the clearance of vegetation and earthworks in areas of biodiversity value. Some land uses may cause sediment and pollutants to reach water bodies which may directly affect species, by, for example, clogging of the gills of filter feeders, reducing water quality and smothering benthic habitats.

The RMA provides that no person may use land in a manner which contravenes a rule in a district plan (section 9). Subdivision of land is now permitted unless it contravenes a rule in a NES or district plan (section 11). Therefore, district plans have an important role in controlling the impacts of land development on indigenous biodiversity. If no rule is provided for in the plan, land activities do not generally require consent and therefore cannot be directly controlled.

There are a number of rules local authorities can incorporate into their district plans to address the threats to biodiversity, including those which:

  • Control the clearance of vegetation
  • Control the level of earthworks
  • Control the discharge of contaminants
  • Control the construction of impermeable surfaces
  • Control stock access to significant habitats

For example, a rule in the Nelson Resource Management Plan states that the total of indigenous forest cleared on any one certificate of title in any three year period must not exceed 0.2 hectares, or a resource consent is required. Conditions can be placed on resource consent for activity within an area of indigenous forest that may impact on biodiversity values. Conditions can prescribe the use of management practices that reduce the risk of weed invasion when forming new tracks or clearing vegetated tracks. They can also require annual plant and animal eradication programmes which apply to specific species. Conditions can also require financial contributions. Pest management strategies and biodiversity offsetting are also useful tools which can be applied to indigenous forest protection.

The following provides a checklist for possible contents of a district plan related to biodiversity protection:

  • Are all the key biodiversity issues and threats related to the scope of plan included?
  • Is the approach consistent with relevant regional plans?
  • Are all the values effectively mapped?
  • Are areas of coastal indigenous vegetation and significant coastal habitats that are significant within the district spatially identified?
  • Do the provisions give effect to all relevant national policy statements and the regional policy statement?
  • Will the provisions achieve the maintenance of indigenous biodiversity generally?
  • Do the provisions provide for the protection of significant indigenous biodiversity?
  • Are there objectives related to all the key values, habitats and species?
  • Are there clear limits on uses that will achieve those objectives (such as limits on vegetation clearance)?
  • Do the limits have teeth (for example, breaching them is a prohibited activity)?
  • Are the methods included the best ones to achieve the objectives? Will they be effective?
  • What activities are permitted? Could those activities be contrary to the objectives?
  • What consents are required and do decision-makers have sufficient discretion to address impacts on biodiversity? Can a consent be declined or only conditions placed on it?
  • Are the rules sufficiently tight to ensure that the objectives can be met, taking into account any activities which are likely to be permitted or consented under the plan?
  • Have all the issues that are relevant to biodiversity in the district been incorporated (such as bird strike, lights, pets in subdivisions, disturbance of wildlife and ditch clearance)?
  • Are a range of statutory and non-statutory methods provided for, including provision for financial incentives and support for landowners and voluntary community groups restoring biodiversity?
  • Has a monitoring programme been defined and is it adequate to identify the health and extent of areas of indigenous vegetation, significant habitats, indigenous ecosystems and threatened species and changes to their status?

Identifying significant biodiversity areas

As described earlier, section 6(c) of the RMA imparts an obligation on local authorities to recognise and provide for the protection of areas of significant indigenous vegetation and significant habitats of indigenous fauna in plans. 2562  When evaluating whether an area is ‘significant’ the relevant criteria include: 2563

  • Representativeness (extent of range of genetic and ecological diversity)
  • Diversity and pattern  (in relation to ecosystems, species and land forms)
  • Rarity factors and/or special features
  • Naturalness, intactness, size and shape (affecting the long-term viability of species, communities and ecosystems and amount of diversity)
  • Inherent ecological viability and long-term sustainability
  • Relationship between natural areas and other areas of more modified character
  • Vulnerability of site and management input required to maintain or enhance an area’s significance

Best practice is to spatially identify the location of significant areas and habitats within their district and regional plans, using a schedule or map. This is a more certain and effective approach than including criteria in plans for defining areas of significant vegetation and significant habitats with the actual spatial areas only being identified during the resource consenting process. Some local authorities have adopted a hybrid approach where they have incorporated specific identified areas into plans using a schedule or map and also specify criteria for the identification of additional areas.

The Environment Court has stated that the use of voluntary mechanisms by themselves do not afford adequate assurance of protection for sites of ‘high value (botanical)’ or ‘moderate high value (wildlife)’, given that a district plan’s schedule of ecological sites could be expanded to accommodate those items. 2564  In the same case, the Environment Court concluded that neither was the scheduling process the complete answer, but part of a raft of mechanisms adopted to assist fulfilment of the RMA’s purpose in terms of section 6(c).

Resource Consents

Where a regional or district plan requires a resource consent to be obtained for a specific activity, conditions can be placed on the granting of consent to address the impacts on biodiversity of the proposed activity. These might, for example, require replanting of areas of indigenous vegetation, the exclusion of stock from important habitat, on-going weed and pest control or financial contributions. Conditions on consent can include offsetting the adverse effects of an activity by providing for the protection, restoration or enhancement of biodiversity in another location with similar biodiversity values, provided the conditions meet the new 'either agreed or directly connected' test in the new section 108AA (RLAA)

The RMA allows a resource consent to be granted on condition of a financial contribution (section 108). However, financial contributions are to be repealed in 2022. A financial contribution includes money, land or a combination of both and may potentially offer biodiversity protection value. However, a consent authority may only require a financial contribution if the plan or proposed plan specifies purposes for which a contribution may be applied and how the level of contribution is to be determined.

Development contributions may be required by a local authority if a development will require the territorial authority to expend funds to provide appropriate reserves, network infrastructure or community infrastructure for the development (section 199 of the Local Government Act 2002). The contribution may be in the form of money, land or both. A contribution may be used to purchase land to be held for conservation purposes or under a conservation covenant.

Esplanade reserves and strips

The RMA provides for the creation of esplanade reserves in certain situations.

The purpose of esplanade reserves is to:

  • Protect conservation values (maintaining or enhancing the natural functioning of the adjacent sea, river or lake, or water quality, aquatic habitats, or protecting the natural values associated with the esplanade reserve, or mitigating natural hazards)
  • Enable public access to any sea, river or lake
  • Enable public recreational use of the esplanade reserve and adjacent sea, river or lake, where the use is compatible with conservation values

When land is subdivided to create an allotment of less than four hectares, an esplanade reserve 20 metres in width must be set aside along the mark of mean high water springs, along the bank of any river or along the margin of any lake, 2565  unless a rule in a district plan or a resource consent provides otherwise. Esplanade reserves are subdivided off the adjacent land and ownership vests in the council.

District councils can require, through a rule in a district plan, that an esplanade reserve of a width greater than 20 metres is set aside, or that an esplanade reserve is required when allotments of four hectares or more are created. However, compensation must be paid for the extra land which is taken. Esplanade strips are an alternative mechanism for protecting riparian land on subdivision. They are created by the registration of an instrument between the territorial authority and the subdividing owner. They are registered on the title, but the land within the strip remains in the ownership of the landowner.

Volunteers planting sand dunes (Crown Copyright: Department of Conservation: Te Papa Atawhai, n.d.)

Biodiversity Offsetting

A key challenge for biodiversity conservation is the competition for land. Many times New Zealand is faced with a choice between a promising development project – a road, a power station, a mine, a landfill – and the biodiversity values that exist on land identified for the project. Sustainable Development in the 1970’s sought to find solutions to such problems, and today, Biodiversity Offsetting is one such tool. 

The common goal of biodiversity offsetting is two-fold:

  • to achieve no net loss and ultimately a net gain of biodiversity on the ground and
  • to use private sector financial power flowing from development projects to provide financial support for biodiversity currently unconserved. 2585

What is Biodiversity Offsetting? 

Biodiversity Offsetting is a system to assess negative impacts on biodiversity as a result of development projects, then specifically and transparently addressing such losses by implementing projects with positive biodiversity outcomes.

This system intends to measurably link biodiversity loss from economic development directly to actions that, at a minimum, reduce the net loss of biodiversity, or ideally even increase biodiversity, overall.

The international Business and Biodiversity Offsets Programme (BBOP) defines biodiversity offsetting as: "measurable conservation outcomes of actions designed to compensate for significant residual adverse biodiversity impacts arising from project development after appropriate prevention and mitigation measures have been taken. The goal of biodiversity offsets is to achieve no net loss and preferably a net gain of biodiversity on the ground with respect to species composition, habitat structure, ecosystem function and people’s use and cultural values associated with biodiversity".

 Biodiversity Offsets can be voluntary – companies and developments want to account and properly address their biodiversity impacts for their internal business reasons, such as marketing, licenses to operate, social good will, or to meet finance requirements. Such offsets can also be compliance driven, where regulations require companies and developments to specifically address biodiversity impacts in order to obtain consent to operate legally. 

Offsets are one tool in a process termed the Mitigation Hierarchy. 

The Mitigation Hierarchy is designed to address the principle that avoiding loss is the most important, and least risky, approach to biodiversity conservation. The Hierarchy is also designed to ensure that offsetting does not become a ‘license to trash’ where biodiversity values at a development site are needlessly or excessively lost. The Mitigation Hierarchy sets out a series of actions required to meet these objectives.

 Terminology is slightly different around the world, but in general the first requirement is to avoid negative impacts, then minimize those that are unavoidable, then remedy or mitigate the any remaining negative impacts. Only after all reasonable or practical steps have been taken to do these things, could an offset or other compensation be considered.

The BBOP diagram below illustrates how a step-by-step application of avoiding, remedying and then mitigating reduces the impact of a project, towards the No Net Loss objective.  Offsets, and perhaps later even compensation, are applied as a subsequent step to achieve No Net Loss, or even Net Positive Impact. 

There are three factors that make biodiversity offsetting particularly desirable to use New Zealand: 

  • Continued development and biodiversity loss 

    Economic growth continues to be a strong priority for New Zealand, and Biodiversity Offsetting is a tool that sits within Sustainable Development – how to integrate both economic and environmental needs. Continued biodiversity loss is well documented so finding multiple ways to tackle this issue is important. Offsetting is one tool available to address the problems around insufficient biodiversity conservation in New Zealand under existing development pressures.

  • Conservation on private land 

    Significant biodiversity is located on private land, so converting private land for economic development is a key biodiversity threat. This also means that there are great opportunities for conserving indigenous biodiversity, if we can find tools that work on private land, such as Biodiversity Offsetting.Tackling our continued biodiversity loss will therefore require policy tools that speak to what happens to biodiversity in the private sector. Offsetting is one tool because it specifically focuses on biodiversity loss through development, and offers a mechanism for biodiversity conservation on private land in a financially sustainable manner.

  • Internationally competitive policy

    Considering Biodiversity Offsetting in New Zealand is also important due to its presence overseas – for New Zealand to remain internationally competitive, we must have strong policies for both our economy and our environment that live up to emerging international best practice. Biodiversity Offsetting is a system designed to be more equitable, transparent and robust, compared to business-as-usual, or more traditional environmental management approaches. 

Key terminology 

Despite the term Biodiversity Offsetting being commonly used overseas, for many New Zealanders who work in conservation and resource management it involves terminology that is poorly understood, so is rarely used in daily professional life.

 It is an unfortunate fact that terminology varies around the world. The key terms are mitigation hierarchy, mitigation, offsetting, compensation, and No Net Loss.

Mitigation Hierarchy: As discussed above, the Mitigation Hierarchy is a tool to reduce the risks to biodiversity. Following the stages in the Mitigation Hierarchy as consecutive steps seeks to reduce the amount of loss, and then reduce the amount that is simply conserved elsewhere. At the end of the hierarchy offsetting is only required to address the impacts on site that have no other way to be addressed. This tool is now used internationally by many different sectors, and in a wide range of Environmental Impact Assessment functions.

 Mitigation: In New Zealand, mitigation usually means positive biodiversity actions taken within the area of the development to lessen the overall biodiversity impacts. This might include planting and regenerating vegetation on marginal areas, or controlling predators and pests. The key to mitigation in New Zealand is that it is on the same site as the development project, with the intention to replace loss (i.e. distinct from avoiding or minimizing loss in the first instance). Overseas, the term mitigation is often used instead of offsetting.

 Offsetting: In New Zealand an offset is a positive environmental project that is implemented offsite, directly related to the scale and nature of the residual negative biodiversity impacts, by applying measurable, verifiable positive biodiversity actions.

 Compensation: If the negative impacts cannot be addressed and replaced through an offset, then an alternative is environmental compensation. Compensation involves implementing a positive environmental project where the actions involved aren’t for the same type of biodiversity that has been lost (in scale, type or nature). Compensation often involves local conservation priorities, but may not be the same type of biodiversity that has been impacted by development.

 No Net Loss: This is a key guiding principle of the mitigation hierarchy. This principle aims to achieve outcomes of no loss of biodiversity overall: values may be located in slightly different locations, and may be made up of slightly different compositions, but overall biodiversity levels are maintained.

 While a seminal starting point, the concept of No Net Loss has attracted much debate. In particular, there is increasing desire to see policies that not only replace what is being lost through development, but to provide enough conservation to account for historicalloss, or loss from other causes. Many regions and states around the world have now turned to a Net Gain objective, where overall net environmental benefit is required.

 You can learn more about No Net Loss of Biodiversity by following the recent Forest Trends conference in London, in June 2016 here.

The legal basis in New Zealand 

Offsetting under the RMA

The first requirement to make offsetting both permissible and binding in a legal sense, is to require biodiversity be considered when planning and approving development proposals. In New Zealand, we find this foundation primarily in our Resource Management Act 1991. While not specifically mentioned, biodiversity conservation has been possible through phrases such as ‘significant indigenous vegetation’, ‘matters of national importance’ and the ‘intrinsic value of ecosystems’.

 You can read more about Section 6 of the RMA in The Environment Guide, here.

 In addition, under Section 104 the authority may take other points into consideration such as ‘actual or potential’ environmental effects, other provisions such as National Policy Statements, regulations or plans. Crucially, section 104 (c) allows for the consideration of:

  (c) any other matter the consent authority considers relevant and reasonably necessary to determine the application.

 You can read more about Section 104 of the RMA in The Environment Guide, here.

 This provision means that even though there is nothing at the national level (save case law) that governs biodiversity offsetting, it is possible to have it considered in an application. It also means that regional and district councils and other authorities can enact biodiversity offsetting policies, provided they don’t violate any other regulations or policies in place.

 Lastly, Section 5 of the RMA includes language that invokes the Mitigation Hierarchy (described above):

 5 Purpose … (2) (c) Avoiding, remedying, or mitigating any adverse effects of activities on the environment.

 You can read more about Section 5 of the RMA in The Environment Guide, here.

 It is under these provisions of the RMA that a biodiversity offset may be considered, and why New Zealand has many examples of biodiversity offsetting already. Biodiversity Offsetting is currently part of our resource management, if not part of our environmental policy.

 Additional Acts of government, such as the Crown Minerals Act 1991, the Conservation Act 1987, and the Local Government Act 2002, have roles to play in the legislative landscape for biodiversity offsetting in New Zealand. Yet as the foundation for vehicles such as Resource Consents, Boards of Enquiry, and The Environment Court decisions, it is the RMA that has given us the case law that directs biodiversity offsetting today. The RMA has provided important benchmarks and terminology clarifications around designing and approving Biodiversity Offsets in New Zealand, with such case law collectively creating a picture of what constitutes an acceptable biodiversity offset.

Legal History 

The first use of compensation was seen in JF Investments v Queenstown Lakes District Council in 2006 (C048/2006). In what grew to be know as the JF Investments Desiderata, the Court outlined a set of conditions by which an offset can meet the conditions of the RMA, as follows:

 (1) it should preferably be of the same kind and scale as work on-site or should remedy effects caused at least in part by activities on-site;

(2) it should be as close as possible to the site (with a principle of benefit diminishing with distance) so that it is in the same area, landscape or environment as the proposed activity;

(3) it must be effective; usually there should be conditions (a condition precedent or a bond) to ensure that it is completed or supplied;

(4) there should have been public consultation or at least the opportunity for public participation in the process by which the environmental compensation is set;

(5) it should be transparent in that it is assessed under a standard methodology, preferably one that is specified under a regional or district plan or other public document.

On the case, Mark Christensen writes 5127

 The most comprehensive discussion of environmental compensation is JF Investments Limited v Queenstown Lakes District Council C48/2006. There, the Environment Court considered an application for land use consent for a residential platform situated in an outstanding natural landscape in the Queenstown District. …. The Court defined environmental compensation as: Any action (work, services or restrictive covenants) to avoid, remedy or mitigate adverse effects of activities on a relevant area, landscape or environment as compensation for the unavoided and unmitigated adverse effects of the activity for which consent is being sought.”

 In the years that followed, this case was used as the benchmark against which increasing numbers of proposed consents, and consent appeals, looked to create various forms of biodiversity offsets (even if terms have been used inconsistently).  

 Such cases include:

 Director General of Conservation v Wairoa District Council (EC W081/2007)

In “The Bayly Trust Case” where The Department of Conservation considered that to lose the kanuka forest area in question would amount to further biodiversity loss, yet the Environment Court held up that it was a sufficient trade-off to protect the podocarp-braodleaf forest offered as an offset. The court agreed that without this resource consent and offset, there was no reason to believe any conservation would occur on the property and so re-enforced the legitimacy of the tradeoffs that offsets require, under New Zealand law.

Lower Waitaki River Management Society vs. Canterbury Regional Council (C80/2009)

In 2009, the construction of a hydroelectric power plant and dam were proposed in Lake Waitaki, and creation and enhancement of wetlands in the area were required as an offset. This decision reinforced findings in JF Investments, by adopting the Desiderata set out, and allowing consideration of an ‘environmental compensation’ offer in addition to mitigation. This established that both Mitigation and Compensation may be considered, and referenced The ICUN Report by Ten Kate, Bishop and Bayon “Biodiversity Offsets: Views, experiences and the business case”.

Royal Forest and Bird Protection Society Inc v Gisborne District Council (EC W026/2009)

Where an application for a selective logging program in the high country between Gisborne and Opotiki included a biodiversity offset by applying both the JF Desiderata, six principles of offsetting from Dr. D. Norton, and bringing the standards very close to the BBOP principles, and the Biodiversity National Policy Statement which would be released as a draft in 2011[ii].

 Other key cases in New Zealand case law history that establish the precedents and benchmarks for Biodiversity Offsets include: 

 Pivotal Cases

Two of the most important decisions regarding biodiversity offsets have been seen in the following cases:

 Transmission Gully

 The Transmission Gully case is important because the judgment clearly made room for a sequential, mitigation hierarchy like approach, and defined that offsets and compensation were two distinct activities.

 For The New Zealand Transport Agency’s Transmission Gully roadway project, a change needed to be made to the Regional Freshwater Plan for the Wellington Region. The question proposed to the specially created Board of Inquiry was whether considering an offset would be satisfying the objectives of the RMA (avoid, remedy, mitigate) under which the plan change was being considered.

 The 2011 decision recognized the use of a ‘cascading regime’ approach where impacts were first avoided, then remedied, then mitigated, and only then were they offset:

 In Transmission Gully, the Board of Inquiry found that: ...offsetting relating to the values affected by an activity was in fact a form of remedy or mitigation of adverse effects, and should be regarded as such. Offsetting which did not relate to the values affected by an activity could more properly be described as environmental compensation.

 The Board’s final decision, drew on the policy of No Net Loss, and the BBOP principles, including:

  • Adverse effects are avoided to the extent practicable;
  • Adverse effects, which cannot be avoided, are remedied or mitigated.

 Mitigation could include offsetting when:

  • There is a clear connection to the ecological values at both sites,
  • Offsets are as close a possible to the impact site (within the affected catchments),
  • Offsets are transparently assessed, and implemented “to the extent practicable”.

 Dennison Plateau

 Further distinction between terminology was seen in the case brought by Royal Forest and Bird Protection Society of New Zealand Inc. against Buller District Council (decided in 2013) regarding the council’s intention to permit a coalmine within the Dennison Plateau on the South Island’s West Coast. The case centered on discussions around whether, in the case that not all residual negative environmental effects could be suitably accounted for (avoided, remedied and mitigated), it was appropriate to approve an offset to address these residual negative impacts. The High Court’s judgment, went against the Transmission Gully judgment and ruled that “Mitigation” and “Offset” were not interchangeable, and were in fact distinct steps or actions: "The usual meaning of “mitigate” was to alleviate, or to abate, or to moderate the severity of something. Offsets did not do that. Rather, they offered a positive new effect, one, which did not exist before (see [72])."

 This case established, (among several other things) that Offsets are held in regard to section 104 (1) (a) and (1) (c) and Mitigation is held in regard to section 5 (2)(c), and how these two terms might be considered to separate and different. This court did not,however agree that either mitigation or offsetting be automatically given greater weight – that would depend on the individual context only.

 Again, Mark Christensen writes:

 The High Court decision on the Escarpment Mine project held that offsets are not to be considered as mitigation of adverse effects, but rather they are to be considered as positive effects offered by an applicant. In making that finding, the High Court reversed the approach that the Environment Court and Boards of Inquiry had generally come to adopt. This previous approach still bears consideration, particularly in distinguishing between offsets and environmental compensation.

What do New Zealand Biodiversity Offsets look like? 

Through cases under the RMA, a number of biodiversity offsets have been possible in New Zealand. Such cases established that offsets come after the Mitigation Hierarchy actions, after Mitigation itself, but as separate to Compensation.

 Yet without specific legislation, and with a variety of approaches and opinions at play, looking at specific examples is a key way to understand biodiversity offsetting in New Zealand. More information about these examples (and others) can be found at the BBONZ website, and in “Biodiversity Offsets – the Latest on the Law” by Mark Christensen, 2011.

 Examples of projects made possible because of offsets include:

  • The Bayly Trust’s 3500-hectare Waikatea Station created a 799-hectare offset of podocarp-braodleaf forest, under their consent to clear 354 hectares of kanuka scrub for grazing (Director General of Conservation v Wairoa District Council, above). The offset added QEII Trust protection, excluded stock, enacted pest and predator control and allowed regeneration and re-vegetation in the protected area.
  • The Waitaki Dam and hydroelectric power plantwas consented in the Lower Waitaki River, where 135 hectares of riparian wetland and 10 hectares of riparian braids were impacted (Lower Waitaki River Management Society vs. Canterbury Regional Council, above). A wide range of mitigation measures were required, including offset requirements involving the creation of 80 hectares of new riparian wetland on Meridian-owned land, and 70 hectares on other privately-owned land in the vicinity. 5128  
  • Tiromoana Bush is an offset developed out of the Transwaste Canterbury Ltd v Canterbury Regional Council case above.  From a proposal to create a regionally-important landfill site requiring the clearance of remnant native bush patch, an offset of 400 hectares was created, including 40 hectares of native vegetation planting, active management plan, and restoration/recreation of a stream and wetland system. Today the offset project is now Tiromoana Bush, a regionally significant ecologically and recreational area, with a website here.
  • The Transmission Gully Plan Change case (above) eventually resulted in a Resource Consent requiring 627 hectares of mitigation planning be put in place to offset the 120 hectares of various types of indigenous terrestrial and aquatic environment was lost. 5129 The Management Plans, including the mitigation plans, can be found here.
  • Solid Energy worked with the international organization BBOP to proceed through the mitigation hierarchy and deliver an offset for Strongman Mine on Greaymouth Coalfields of the West Coast of the South Island. 5130 Outcomes included protection of 2685 hectares of indigenous vegetation from ongoing fragmentation and mining encroachment. You can find the BBOP Case Study report on this offset here, and Golder Associates’ overview of the ecological assessment methodology used in this case.
  • Hauāuru mā Raki Wind Farm was a 180-turbine wind farm stretching along the West Coast of the North Island, from 8km south of Raglan. A project of “national significance”, the consent included a number of offsets designed to follow on from extensive mitigation measures: predator and pest control; fencing, stock exclusion and protection of unprotected native bush; weta and native bird monitoring; intensive breeding habitat management; cash payments to existing Conservation Trust in the area; and predator-poof fencing with predator expulsion. 5131   
  • Mt Cass, in Waipara, North Canterbury was the site of a proposed 67-turbine wind farm in 2007. In 2011, an appeal to the Environment Court granted this project consent, approving a reduced wind farm footprint, with notable avoidance, remedy and mitigation components (Mainpower NZ Limited v Hurunui District Council [2011] NZEnvC 133). The offset of residual impacts provided important conservation to the unique and valuable karst Limestone ecosystem, home to many threatened and at-risk fauna and flora species, as the ecosystem was not currently protected or managed prior to the wind farm development. This project has yet to be completed. 

 New Zealand Biodiversity Offsetting policy 

National Biodiversity Publications

New Zealand has a number of relevant documents produced by government entities that provide information regarding how to manage biodiversity in New Zealand. This guidance can form the back-bone of the design and consideration of biodiversity offsets in New Zealand. For example, how to classify elements of biodiversity (such as species) and how to weight up different types of biodiversity (such as by rarity or threat classification) when considering a sites importance.

Relevant documents include:

 More information about these documents can be found elsewhere on The Environment Guide

 Department of Conservation

With the Department of Conservation’s (DoC) advocacy mandate and jurisdiction over public conservation land that could potentially be requested for development projects, they have been prominently involved with the New Zealand conversation about biodiversity offsetting. In 2009, DoC launched a three-year ‘Biodiversity Offsetting Programme”, which produced this report.

 “The research program has covered areas such as the key elements of No Let Loss offsets, appropriate limits to offsets, and overcoming systemic barriers to successful offsets. As a result of this research, decision-makers and developers in New Zealand have a better understanding of the challenges and opportunities inherent in this highly complex area.”

 Two power point presentations summarizing this research are available:

 In 2014, the Department produced their “Guidance on Biodiversity Offsetting in New Zealand” together with a Biodiversity Offsets Accounting System. This guidance and related documents do not carry any statutory weight, so do not constitute any formal requirements, but provide comprehensive guidance regarding the Department of Conservation and biodiversity offsetting.

 National Policy Statement (NPS) on Biodiversity

In 2011, the consultation on the Proposed National Policy Statement on Biodiversity was announced. This was significant for biodiversity offsetting as it was the first time specific biodiversity offsetting language and provisions had been included in a national-level, legislative document (under the Resource Management Act). You can read more about the NPS, on The Environment Guide

 Section 3.3.5 defined biodiversity offsets. By including biodiversity offsets in the NPS, it gave the RMA the power to require the councils to consider and provide for them, in their individual planning documents. Those seeking to obtain consent through the RMA, would then need to uphold those requirements, and subsequently offset their biodiversity impacts.

 Policy 5 reinforces the requirement for the Mitigation Hierarchy (although that term is not used), No Net Loss, and for residual effects to be offset. Policy 6 also references a requirement to offset remaining adverse effects. Schedule 2 described the Principles to be applied when considering a biodiversity offset.

 The Ministry of The Environment’s Summary of Submissions describes the variety of comments that were submitted regarding biodiversity offsetting. Themes included the position, and emphasis, of offsetting within the mitigation hierarchy; relationship to the BBOP Principles; and relationship to the DoC Guidance and Research Programme.

 To date, no announcement has been made regarding when the final NPS might be prepared, or implemented. Therefore, none of the provisions it included carry any weight for offsetting currently.

 BBOP Habitat Hectares

 In New Zealand there is no mandated accounting system to apply when creating and assessing offsets and offset proposals, however The BBOP Habitat Hectares approach has been used in several key examples listed above, and was the model tested as part of the DoC biodiversity offset research program.

 Examples where a Habitat Hectares approach have been applied in New Zealand include:

  • Solid Energy’s Strongman Mine
  • MainPower’s Mt Cass wind farm
  • Contact Energy’s Hauauru Ma Raki windfarm
  • Meridian Energy’s Mokihinui Hydro Project
  • Solid Energy’s proposed Mt William North mine
  • Winstone Aggregates Hunua Quarry.

 The Future of Biodiversity Offsetting 

Biodiversity offsetting continues to exist in New Zealand, on an ad-hoc or case-by-case basis described by the examples here. In 2016, the government announced a fnumber of proposed reforms to the RMA, representing the current social and political concern over the need to improve the status quo. Attention is still strongly on New Zealand’s continued biodiversity loss, personified by the publication “Vanishing Nature: facing New Zealand's Biodiversity Crisis” written lead by Dr. Marie Brown and published by The Environmental Defense Society.

 Although global and national economic trends in recent years have seen a slowing of the large-scale energy and infrastructure projects typically driving the need for offsets under the current system, the underlying pressure to reform and improve New Zealand’s biodiversity management in the development process remains as strong as ever.

 Therefore, the requirement for biodiversity offsetting tools remains; so too the requirement for nationally-unifying policy and guidance.

 While there are no indications of when the NPS on Biodiversity may be put in place, or what mechanisms it might contain, there remains a gap in Biodiversity Offsetting Policy nationally. The DoC Guidance and Methodology is an increasingly well-known reference point. Looking forward, reporting of case studies and examples of its application, together with independent analysis and assessment would support its use as national guidance.

 In the absence of national-level policy guidance, there is interest within regional and district councils, and the Local Government body as a group, to include biodiversity offsetting in the regional and district plans that are currently under review.

 Research continues to be undertaken by New Zealanders into how best to manage biodiversity offsets, from ecological assessment methods and outcomes, through to the best policy approaches to take.

 After considering a more robust approach to biodiversity offsets in New Zealand, attention is also turning to improving upon the biodiversity offsetting model. This may include approaches such as biodiversity banking which seeks to overcome two major barriers to biodiversity offsetting: allowing positive impacts to be assured and ‘banked’ prior to adverse impacts occurring, and generating effective incentives for those with biodiversity on their private property to protect and enhance those values. For more on Biodiversity Banking and the future of biodiversity offsetting in New Zealand, read more at BBONZ.

Tree protection

In 2009 and 2013 amendments were made to section 76 of the RMA to restrict the ability of councils to protect urban trees from removal or damage. Prior to those amendments councils were able to protect urban trees based on identifying characteristics such as height. Section 76 now requires that urban tree protection rules describe the trees to be protected and specifically identify the land on which they are located.

Section 76

(4A) A rule may prohibit or restrict the felling, trimming, damaging, or removal of a tree or trees on a single urban environment allotment only if, in a schedule to the plan,—

(a) the tree or trees are described; and
(b) the allotment is specifically identified by street address or legal description of the land, or both.

(4B) A rule may prohibit or restrict the felling, trimming, damaging, or removal of trees on 2 or more urban environment allotments only if—

(a) the allotments are adjacent to each other; and
(b) the trees on the allotments together form a group of trees; and
(c) in a schedule to the plan,—
     (i) the group of trees is described; and
     (ii) the allotments are specifically identified by street address or legal description of the land, or both.

(4C) In subsections (4A) and (4B),— group of trees means a cluster, grove, or line of trees urban environment allotment or allotment means an allotment within the meaning of section 218

(a) that is no greater than 4 000 m2; and
(b) that is connected to a reticulated water supply system and a reticulated sewerage system; and
(c) on which there is a building used for industrial or commercial purposes or as a dwellinghouse; and
(d) that is not reserve (within the meaning of section 2(1) of the Reserves Act 1977) or subject to a conservation management plan or conservation management strategy prepared in accordance with the Conservation Act 1987 or the Reserves Act 1977

(4D)To avoid doubt, subsections (4A) and (4B) apply—

(a) regardless of whether the tree, trees, or group of trees is, or the allotment or allotments are, also identified on a map in the plan; and
(b) regardless of whether the allotment or allotments are also clad with bush or other vegetation.

Local Government Act

The Local Government Act 2002 requires councils to prepare Long-Term Plans every three years. The intention of these plans is to state a particular community’s long-term goals and priorities and to set some key performance targets. Each Long Term Plan should describe a council’s financial strategy; outlining how much the council’s plan will cost and how it will be paid for. More focused community outcomes are also identified in the Long Term Plan.

The community outcomes within each Long-Term Plan generally identify particular concerns for that community, such as a desire for cleaner water or for more reserves and parks. These particular outcomes are then used by each council, as well as other organisations and agencies, to guide their planning and activities for the coming years.

Local authorities consult widely with their community when writing their Long Term Plans. It is the main opportunity for people to have their say in local decision-making. These plans are important for delivering non-regulatory protection of biodiversity as they allocate resource to protection and restoration projects. They can also assist in regulatory protection by identifying the key biodiversity issues to be addressed by regulation and allocating resources for activities such as enforcement and monitoring.

Each council is also required by the Local Government Act to prepare an annual plan in consultation with the community. The annual plan outlines a council’s budget for the coming financial year and shows how it will fund certain activities and services within the wider umbrella of its long term plan. These documents essentially provide for integrated decision-making by coordinating the management of all of a council’s resources.

The following provides a checklist for possible contents of a Long Term Plan or annual plan relevant to biodiversity protection:

  • Which sections of the plan affect biodiversity (for example, check the back parts of the document as well as the main activity chapters, particularly for matters such as sale of assets)?
  • Do those sections collectively cover all the key issues for biodiversity in the area? Have specific issues of concern, such as pest management, been identified?
  • Are the objectives the right ones for protecting and restoring biodiversity?
  • Do the activities listed cover everything the council should be involved in?
  • Is the expenditure increasing or decreasing, and is it focused in the right areas? Have sufficient resources been allocated to biodiversity protection and enhancement, including adequate monitoring of progress?
  • Are the right things being measured and are the performance measures the right ones?
  • Will the council structure, membership of council-owned company boards and other governance arrangements work well for protecting and enhancing biodiversity?
  • Are there any proposed asset or land sales, or major changes to how assets are managed, and do these have implications for biodiversity management?
  • Is there provision for landowner and community-led initiatives?
  • Has council recognised the need to protect and manage biodiversity on council-owned land and as a result of its own activities?
  1. http://www.doc.govt.nz/about-us/our-role/managing-conservation/recreation-management/visitor-statistics-and-research/national-parks-visitor-statistics/

  2. Parliamentary Commissioner for the Environment, 2009, Change in the high country: Environmental stewardship and tenure review, Parliamentary Commissioner for the Environment, Wellington

  3. Parliamentary Commissioner for the Environment, 2008, Ecological processes in the South Island pastoral high country, Report No. 1955, Parliamentary Commissioner for the Environment, Wellington

  4. Minister of Conservation v Western Bay of Plenty District Council EnvC Auckland A071/2001, 3 August 2001.

  5. Forest & Bird Protection Society Inc v Central Otago District Council EnvC Auckland A128/04, 23 September 2004

  6. Minister of Conservation v Western Bay of Plenty District Council EnvC Auckland A071/2001, 3 August 2001, paras 36, 49

  7. For the purposes of this section, a river means a river whose bed has an average width of 3 metres or more where the river flows through or adjoins an allotment; and a lake means a lake whose bed has an area of 8 hectares or more (s 230(4))

  8. http://www.doc.govt.nz/publications/conservation/biodiveristy-offsets-programme/biodiversity-offsets-programme/what-is-biodiversity-offsetting/

  9. http://www.doc.govt.nz/get-involved/apply-for-permits/managing-your-concession/concession-statistics/

  10. Page 20, “My Bush, My Property?” Mark Christensen and Olivia Burge, Anderson Lloyd Lawyers. http://www.nzcel-conf.auckland.ac.nz/papers/Christensen_Mark%20.pdf

  11. Meridan Offers Mitigation Plan. Otago Daily Times, 2009. http://www.odt.co.nz/the-regions/north-otago/62772/meridian-offers-mitigation-plan

  12. Final Report and Decision of the Board of Inquiry into the Transmission Gully Proposal, Vol. 1. Board of Inquiry into the Transmission Gully Proposal 2012, http://www.epa.govt.nz/Publications/TGP%20Final%20Decision%20-%20Vol%201%20Report%20and%20Decision%20-%2012%20June%202012.pdf

  13. Solid Energy New Zealand and the Business Biodiversity Offsets Program.

  14. Final Report and Decision of the Board of Inquiry into the Hauāuru mā Raki Wind Farm and Infrastructure Connection to Grid, Vol. 1. Board of Inquiry into the Hauāuru mā Raki Wind Farm Proposal and Infrastructure Connection to Grid, 2011 http://www.mfe.govt.nz/sites/default/files/media/hmr-final-report-vol-1_0.pdf

Last updated at 2:40PM on April 11, 2018