The Campbell Brown Blog

Proposed National Policy Statement on Indigenous Biodiversity

The Ministry for the Environment has released a proposed National Policy Statement on Indigenous Biodiversity (proposed NPS) for public comment.  The proposed NPS would establish policies and decision-making frameworks for the identification and management of indigenous biodiversity.

Local authority initiatives to protect significant indigenous vegetation and significant fauna habitat have often met with heated responses from landowners keen to avoid the erosion of existing development rights.  The proposed NPS is an attempt to provide greater clarity and consistency around these issues.

Councils should be aware that many local authorities would need to promulgate specific plan changes to accommodate new obligations arising under the proposed NPS.

The proposed NPS will be of particular interest to local authorities, environmental groups, infrastructure providers, Maori, farmers and other owners of land containing significant indigenous vegetation and fauna habitat.

National policy statements are government initiated policy documents that provide guidance on matters of national importance.  The policies contained in an NPS provide a framework for local authorities when exercising functions under the RMA, particularly when considering applications for resource consent and preparing statutory planning documents such as district plans.

In this case, the proposed NPS relates to the need to maintain New Zealand’s indigenous biological diversity.  This objective links back to section 6(c) of the Resource Management Act 1991.  The maintenance of indigenous biological diversity is also specifically identified as a function of regional councils and local authorities under sections 30 and 31 of the RMA.

Notable features of the proposed NPS are:

  • The proposed NPS contains a list of criteria to help councils identify areas of native vegetation and habitats of indigenous animals that are rare or threatened at a national level;
  • The proposed NPS requires district and relevant regional plans to identify these areas of significant biodiversity within five years of the NPS taking effect;
  • Local authorities would be required to manage the effects of activities through district and regional plans and resource consent decisions to ensure there is no net loss of significant indigenous biodiversity;
  • The proposed NPS seeks to promote the maintenance of indigenous biodiversity while recognising the rights and responsibilities of landowners and the interests of Maori;
  • The proposed NPS does not apply to land that is within the public conservation estate.

Regional policy statements notified after the proposed NPS takes effect would be required to include criteria for the identification of areas of significant vegetation and significant habitat of indigenous fauna.  As a minimum, regional councils would need to adopt the ‘baseline’ criteria that are set out in the proposed NPS in order to meet their obligations under the RMA.

The proposed NPS would also require that district and regional plans include maps or schedules of significant indigenous vegetation and significant habitats of indigenous fauna, together with the baseline criteria for identifying such areas if the plan does not already include more stringent criteria.  This latter obligation would need to be satisfied within five years of the NPS taking effect.

The proposed NPS introduces a couple of interesting concepts.  Local authorities must manage the effects of activities to ensure that there is ‘no net loss’ of biodiversity.  Decision-makers can achieve this objective by accepting that effects on biodiversity will be ‘offset’, as an alternative to the conventional resource management techniques of avoiding, remedying or mitigating.  Schedule 2 of the proposed NPS sets out a number of principles to be applied when considering a biodiversity offset.

Policy 8 of the proposed NPS would impose consultation requirements on local authorities when developing biodiversity-related provisions in their plans.  The policy is noteworthy as it includes a specific requirement to consult with people whose properties would be affected by the proposed plan, in addition to the general public and tangata whenua.  This reflects an acknowledgement that the goodwill and sympathetic management of private landowners is fundamental if the biodiversity decline is to be arrested.

The proposed NPS has the potential to impose substantial costs on local authorities, through the technical work that may be required to identify the areas of significant vegetation and fauna habitat in the district and promulgate a subsequent plan change.  Plan change processes also carry the prospect of expensive litigation if appeals are lodged in relation to a council’s decision.

Landowners with significant indigenous vegetation on their land, but currently with little or no district plan restrictions applying to the management of that land, should see the proposed NPS as a signal that a more restrictive district plan management regime is on its way.  It is increasingly likely that the district plan will identify the vegetation as being significant and impose controls on clearance.  Infrastructure providers might consider it appropriate for the proposed NPS to include some recognition of the public good element of major infrastructure, in order to guide decision-makers when balancing competing protection and development objectives.

There are some inherent challenges in the proposed NPS.  On the one hand, the overriding objective is to halt the decline in New Zealand’s biodiversity by preventing further loss of significant vegetation and fauna habitat.  However, the proposed NPS also explicitly recognises the rights of people and communities to make reasonable use of their land.  This tension can be difficult to reconcile and requires local authorities to undertake a fine balancing act.

The Government is seeking public submissions on the proposed NPS.  The opportunity to lodge a submission closes on 2 May 2011.

Campbell Brown has substantial experience of resource management processes within areas that have significant indigenous vegetation and fauna habitat, covering both district plan development and resource consenting.  We can offer further advice about the proposed NPS and its implications, or provide assistance by drafting a submission.  Campbell Brown can also assist local authorities by conducting a brief review of statutory plans to determine the extent of amendments that may be required to meet the obligations arising under the proposed NPS.

http://www.mfe.govt.nz/publications/biodiversity/indigenous-biodiversity/proposed-national-policy-statement/statement.pdf