The government is signalling councils don’t need to comply with their legal obligations around Significant Natural Areas, i.e., mapping out areas with threatened native plants or wildlife for protection.
While SNAs were first introduced in 1991, last year’s National Policy Statement on Indigenous Biodiversity meant that all councils had to identify land for protection by 2028, including on private land.
The Environmental Defence Society claims the government’s press release is unlawful, as no laws have actually been changed yet around SNAs.
Update 15 March: Associate Environment Minister Andrew Hoggard has clarified his announcement does not affect councils’ obligations around SNAs until the law has formally been changed.
The SMC asked independent experts to comment on the environmental and legal aspects of this announcement.
Environment experts:
Dr Duane Peltzer, Principal Scientist, Ecosystem Ecology, Manaaki Whenua Landcare Research; and Chief Scientist, New Zealand’s Biological Heritage National Science Challenge, comments:
“Good decisions are based on robust evidence. There is abundant evidence that we are in a biodiversity crisis, exacerbated by other drivers of global change like climate extremes and increasing harm from invasive weeds, pests and diseases. Biodiversity and biosecurity are linked, requiring major efforts by linking national policy, co-ordinated action and local scale management, highlighted by issues ranging from controlling wilding pines to stopping M bovis.
“The National Policy Statement for Indigenous Biodiversity (NPS-IB) gazetted in 2023 set a simple goal: ensure no further declines nationally of biodiversity. Significant natural areas (SNAs) are a major mechanism under the NPS-IB for stopping, or ideally, reversing the decline in biodiversity. A three-year suspension on new SNAs could undermine national efforts to protect and restore our biodiversity, our ability to meet international obligations to the Convention for Biological Diversity, and emerging opportunities like biodiversity credits or premiums.
“No evidence is provided for this decision to suspend SNAs, but the justification includes time for a review of the RMA, repeated statements that SNAs undermine property rights and ‘conservation efforts by the people who care most about the environment’. Although critical review of national policy and implementation are appropriate, it is crucial that this review and future decisions about our biodiversity and lands are based on sound evidence to the benefit of landowners and indigenous species alike.”
No conflict of interest.
Dr Jo Monks, Vice-President, New Zealand Ecological Society, comments:
“The National Policy Statement on Indigenous Biodiversity is the result of a long process of stakeholder engagement and compromise. Farming and other industry bodies, NGOs, mana whenua, and private landowners agreed that safeguarding indigenous biodiversity on private land is critical for our well-being, our markets, for halting biodiversity decline, and to meet our international obligations. Voluntary actions, while many and admirable, had not prevented a decline in indigenous biodiversity. All parties agreed that protecting Significant Natural Areas on private land is an important way to halt that decline.
“Aotearoa’s indigenous biodiversity is renowned internationally for its distinctive and unusual character, high levels of endemism, vulnerability to extinction, and the extreme loss that has followed human settlement. Much indigenous biodiversity is found only or mainly on private land. Private land and Crown leases contain most of our 45 endangered or vulnerable naturally uncommon ecosystems, and thousands of our threatened or at-risk plant, reptile, bat and freshwater fish species. If these ecosystems and species are lost here, they are lost to the world.
“It has been councils’ responsibility since 1991 to identify and protect SNAs (areas of significant indigenous vegetation and significant habitats of indigenous fauna) as a matter of national importance. This responsibility has been met in many districts, where most landowners quietly, but solidly, supported identification and protection of SNAs.
“Unlawfully removing councils’ responsibility to identify and protect SNAs favours those few landowners and developers who wish to continue clearing indigenous vegetation and species’ habitats. The result will be accelerated loss of indigenous biodiversity through land use intensification and urban development, as has been seen in other jurisdictions, such as in Queensland, following the loosening of protections against land clearing.
“Getting rid of the agreed SNA process is not supported by most landowners or the general public. It reneges on our international obligations to conserve indigenous biodiversity and will reflect poorly with our key consumers and trading partners.”
Note: The New Zealand Ecological Society is a signatory of an open letter to the government from scientific societies on changes to environmental legislation, sent this week.
No conflict of interest declared.
Dr Susan Walker, Senior Researcher, Research Programme Leader, Manaaki Whenua Landcare Research, comments:
“Much of Aotearoa’s unique indigenous biodiversity is found only or mainly on private land. There has been ongoing fragmentation and loss of remaining natural ecosystems, and declines in many species populations are continuing, despite the voluntary actions and dedication of many private landowners, community groups and citizens.
“The NPS-IB resulted from a thorough, evidence-based collaborative process, including with farming, mana whenua, other industry and private landowner interests. Manaaki Whenua was among many organisations asked to contribute our ecological understanding to that process. Many hundreds of public submissions were considered before the Policy Statement was finally gazetted last year.
“Identifying and protecting SNAs on private land was agreed on as an important mechanism to assist New Zealanders’ many voluntary actions. It is a tried and tested approach that enabled councils’ ecologists to visit and engage with landowners one-on-one over the natural values on their land and how to protect them. The backstop of SNAs meant that landowners and developers would know which places to protect and avoid. Gains made through voluntary efforts were less likely to be undermined by continuing clearance of important indigenous vegetation and habitat.
“If this backstop is removed, the pace of indigenous biodiversity loss is likely to accelerate through more poorly-sited land use intensification and development.”
No conflict of interest.
Legal experts:
Associate Professor Marcelo Rodriguez Ferrere, Facutly of Law, University of Otago, comments:
“The Government’s announcement that it is suspending the requirement for councils to comply with the Significant Natural Areas provisions of the National Policy Statement for Indigenous Biodiversity is deeply concerning from both a constitutional and democratic perspective. I agree with the EDS that the announcement conflicts with some deep legal principles, in particular, the principle expressed in the case of Fitzgerald v Muldoon from 1976.
“Sometimes, however, those legal principles seem removed, dry or abstract. So I want to strip them back to explain in real terms why this is so important and something everyone should care about.
“In New Zealand, we have general elections every three years: we elect Members of Parliament. A party or parties that have the majority of MPs in Parliament can form a Government. So, elections lead to governments, and those governments can legitimately say they have a democratic mandate to deliver on the policies that they campaigned on, and got them elected.
“But that does not mean that governments have a mandate to do anything they want, however they want. Governments – just like anyone else – have to abide by the law. This is, at the core, what we mean by the rule of law. And constitutional law says that only Parliament can make or suspend statutory law. That’s crucial: because Parliament’s processes for making that law allows for democratic engagement (select committees etc.) and scrutiny from other MPs.
“So when the Government essentially says that the law is suspended and that people shouldn’t follow it – as has happened here – that means the law isn’t going through that scrutiny and isn’t allowing that engagement. It means the Government isn’t following the law. It could have done so very easily but has chosen not to. Councils will heed and follow the Government’s announcement, even that is not what Parliament has said and is contrary to the law.
“We have very few constraints on Government in this country. One of them is that they must follow the law. If they do not do so, that erodes some fundamental ideas about our constitution. And so while this may seem arcane, or boring or complicated, it’s really simple. The law says that government can’t suspend the law. Only Parliament can. In suspending the law, the government has breached the law. And that’s something we should all care about.”
No conflict of interest.
Professor Andrew Geddis, Faculty of Law, University of Otago, comments:
“Associate Environment Minister Andrew Hoggard’s press release announcing that “the Government has agreed to suspend the obligation for councils to impose [Significant Natural Areas] under the [National Policy Statement on Indigenous Biodiversity], and we’re sending a clear message that it would be unwise to bother” is misleading at best, and borderline unlawful at worst. Obligations imposed by National Policy Statements are legally binding on local authorities under the Resource Management Act 1991. They can only be “suspended” by amending the National Policy Statement, which requires following a prescribed set of consultative mechanisms in the Resource Management Act 1991. This amendment process does not appear to have occurred. As such, the legal obligations have not been suspended – local authorities are still required to comply with them under an Act of Parliament.
“While the Coalition Government may intend making this change in the future, no minister can by mere announcement remove an existing legal obligation imposed by a parliamentary enactment. If the Minister intends his advice to cause local authorities to stop following what is, for now, the law of the land then he would appear to be purporting to “suspend … the execution of laws”. That is unlawful under the Bill of Rights 1688. If he purports to be merely offering helpful advice to local authorities oh how they may choose to act, they should be aware that this involves them ignoring their legal obligations and so risking litigation designed to require them to comply.”
No conflict of interest declared.
Associate Professor Edward Willis, Facutly of Law, University of Otago, comments:
“The Minister’s press release appears to be constitutionally problematic, on the basis that it is encouraging councils to not do something that they are lawfully required to do. I think it is more accurate to say that the Government may be asking and expecting councils to ignore the law, rather than break the law. But it is tricky because the press release seems to imply that this is an expectation without directly stating it. This could be deliberate, which is why it might be problematic, or it could simply be unfortunate drafting.
“I am limited in the ability to comment further because it is not clear to me as a non-expert in RMA matters exactly what the proper steps would be to take this action. One possibility is that new legislation is needed, in which case the Fitzgerald v Muldoon principle is squarely engaged. Another possibility is that an Order in Council is needed, or that a new NPS is Gazetted. These other options can still be problematic in my view, as these are legal process that should be adhered to (and, as far as I know, these processes haven’t yet been followed) but the analogy with Muldoon v Fitzgerald is less direct. I do remember one of the COVID cases distinguishing Fitzgerald v Muldoon on these types of grounds (a change in the substantive position being a Governmental rather than Parliamentary responsibility), so it might be arguably okay but I think it is still fair to say that the law is unclear.
“Really what is need here is clarification from the Minister. Other public law academics and I have been concerned enough by the press release to comment publicly that it may be problematic. If we have misunderstood the situation, which is possible (for example, some lawful process has been followed of which we on the outside are not aware), then there is an onus on the Minister and Government to clarify why the press release isn’t problematic as we have suggested it might be.”
Conflict of interest statement: “I was involved in Rachel Brooking’s successful election campaign as a volunteer. However I am not a member of or affiliated with the Labour Party or any other political party.”