The RMA Quality Planning Resource

Section 2 of the RMA provides a definition of ‘biological diversity’.

The ‘maintenance’ of indigenous biological diversity by councils is to be undertaken in the context of ss5 to 8 of the RMA. These sections use the terms ‘safeguarding the life supporting capacity’ (of ecosystems); ‘preservation’ (of natural character of the coastal environment, wetlands, rivers, lakes and their margins); and ‘protection’ (of significant indigenous vegetation and significant habitats of indigenous fauna). These s5, 6 and 7 matters contribute to the interpretation of the term ‘maintenance of indigenous biological diversity’. Maintenance can include protection, enhancement and restoration. Section 8 requires councils to take account of the principles of the Treaty of Waitangi when making plans and any other RMA decisions.

Part 2 of the RMA requires particular regard be given to the effects of climate change (s7(i)). This means that councils have both social and legal obligations to take climate change effects into account in their planning. Therefore long-term planning functions need to embrace expected long-term shifts and changes in climate extremes and patterns to ensure future generations are adequately prepared for future climate conditions.

The RMA provides a number of mechanisms that can be used by the Crown, and primarily local authorities, to assist with the maintenance of biodiversity. These mechanisms include national policy statements (including the mandatory New Zealand Coastal Policy Statement 2010), regional policy statements, regional plans and district plans.

Special instruments that fit into this planning framework include water conservation orders, heritage orders, designations, esplanade reserves and strips, and water quality class assignments.

Roles and responsibilities for indigenous biodiversity

Local authority primary roles and responsibilities affecting indigenous biodiversity

RMA

The following sections in Part 2 of the Act are relevant to local authority functions for indigenous biodiversity:

“5 Purpose

(1) The purpose of this Act is to promote the sustainable management of natural and physical resources.

(2) In this Act, sustainable management means managing the use, development, and protection of natural and physical resources in a way, or at a rate, which enables people and communities to provide for their social, economic, and cultural wellbeing and for their health and safety while—

(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 of activities on the environment.

6 Matters of national importance
In achieving the purpose of this Act, all persons exercising functions and powers under it, in relation to managing the use, development, and protection of natural and physical resources, shall recognise and provide for the following matters of national importance:

(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:

(c) the protection of areas of significant indigenous vegetation and significant habitats of indigenous fauna:

7 Other matters
In achieving the purpose of this Act, all persons exercising functions and powers under it, in relation to managing the use, development, and protection of natural and physical resources, shall have particular regard to—

(c) the maintenance and enhancement of amenity values:
(d) intrinsic values of ecosystems:

(f) maintenance and enhancement of the quality of the environment:

(h) the protection of the habitat of trout and salmon:”

Section 2 defines ‘intrinsic values’ in relation to ecosystems as:
“[T]hose aspects of ecosystems and their constituent parts which have value in their own right including:

  • their biological and genetic diversity; and
  • the essential characteristics that determine an ecosystem’s integrity, form, functioning and resilience.”

Regional councils and territorial authorities both have responsibilities relating to maintaining biological diversity:

  • Under s30 of the RMA, regional councils have the function of controlling the use of land for the purpose of maintaining and enhancing ecosystems in water bodies and coastal water. They are also responsible for objectives, policies and methods for maintaining biological diversity.
  • Under s31 of the RMA, territorial authorities are responsible for controlling the effects of the use, development, or protection of land, including for the purpose of maintaining indigenous biological diversity.

Section 62(1)(i)(iii) of the RMA requires a regional policy statement to state the local authority responsible, in the whole or any part of the region, for specifying the objectives, policies and methods for the control of the use of land to maintain indigenous biodiversity. This is an important matter that requires discussion and negotiation between a regional council and its respective territorial local authorities. This discussion should result in a clear allocation of roles and unambiguous accountabilities in the context that territorial authorities are required to give effect to regional policy statements through their district plans (s75(3)(c)).

When developing regional policy statements, regional councils are to have regard to conservation management strategies and plans prepared by the Department of Conservation.

The role of the New Zealand Coastal Policy Statement
The New Zealand Coastal Policy Statement 2010 provides guidance on national priorities for biodiversity in the coastal environment. The main policy addressing national biodiversity is Policy 11 to protect indigenous biological diversity in the coastal environment.

Local Government Act 2002
Section 14 of the Local Government Act 2002 (LGA) sets out a series of principles which local authorities must act in accordance with. Section 14(h) specifies that, in taking a sustainable development approach, local authorities shall take into account three matters including:
“…
(ii) the need to maintain and enhance the quality of the environment; and
(iii) the reasonably foreseeable needs of future generations”.

The LGA specifies community planning processes through long term plans and annual plans. These plans deliver the non-regulatory components of indigenous biodiversity maintenance (and enhancement), primarily through the allocation of resources to programmes and protection and enhancement initiatives, as well as self-imposed constraints on councils’ own potentially damaging activities.

Under the LGA, regional councils can acquire land for regional parks. Using s139(2), the Governor-General may declare all or part of a park to be protected in perpetuity from disposition.

Other statutes
There are a number of other relevant statutes that provide primary functions for and powers to councils that affect biodiversity. These are summarised in Table 1 below.

Table 1: Primary functions and powers of local government that affect biodiversity

Statute

Regional council functions, powers>

Territorial authority functions, powers and responsibilities

Resource Management Act 1991

Control use of land for the purpose of: maintaining and enhancing ecosystems in water bodies and coastal water (s30).
Establishing, implementing and reviewing objectives, policies and methods for maintaining indigenous biological diversity (s30).
Prepare regional policy statement, regional plans.

Control any actual or potential effects of the use, development, or protection of land, including for the purpose of maintaining indigenous biodiversity (s31).
Prepare district plan. 
Control activities on surface of water.
Control noise (for example, from bird scarers).

Local Government Act 2002

Prepare long term plans and annual plans.
Manage water supply catchments (exceptions).
Power to acquire land for regional parks.

Prepare long term plans and annual plans.
Manage water supply catchments.

Wellington Regional Water Board Act 1972

Manage land and catchments in Wellington Region.

 

Local Government Act 1974

 

Construct, upgrade, repair roads (Part 21).
Alter course, level, width or close roads (Part 21).
Subject to Resource Management Act 1991.
Councils can make, maintain, alter, repair or enlarge drainage channel or land drainage works (Part 29).

Land Drainage Act 1908

Drainage boards maintain, deepen, widen, straighten or divert drains (includes all natural water courses excluding navigable rivers). 
Every local authority that is not within a drainage district can exercise the powers of a drainage board (s61).

 

Soil Conservation and Rivers Control Act 1941

Catchment boards have powers to:

  • construct, reconstruct, alter, repair and maintain all works considered necessary to control or regulate the flow of water towards, into, within and from watercourses
  • prevent or lessen overflow of banks and erosion
  • maintain watercourses and defences; deepen, widen, straighten, divert or make new watercourses.
 

Reserves Act 1977

Management of scenic, recreational and local purpose reserves (including esplanade reserves) with biodiversity values. This can include management on behalf of the Crown.

Management of scenic, recreational and local purpose reserves (including esplanade reserves) with biodiversity values. This can include management on behalf of the Crown.

Biosecurity Act 1993

Prepare and administer regional pest management strategies.
Monitor and undertake surveillance for pests.

Act as management agency under a pest management strategy.

Waitakere Ranges Heritage Area Act 2008

Special provisions to supplement existing statutes for managing the Waitakere Ranges.

Special provisions to supplement existing statutes for managing the Waitakere Ranges.

Hauraki Gulf Marine Park Act 2000 (HGMPA)

Section 10 states that the HGMPA is to be treated as a New Zealand coastal policy statement.
Section 8 of the HGMPA addresses the management of the Hauraki Gulf.

Territorial authorities must ensure that plans do not conflict with s7, which recognises the national significance of the Hauraki Gulf) and s8 (which addresses the management of the Hauraki Gulf), as these sections have the force of a national policy statement.

 

Central government roles and responsibilities for indigenous biodiversity

The Ministers of Conservation and Environment have functions under the RMA in ss28 and 24 respectively. The Department of Conservation has the primary responsibility for biodiversity protection under a number of statutes.

Table 2: Primary biodiversity functions, powers and responsibilities of the Department of Conservation

Statute

Main functions, powers and responsibilities

Conservation Act 1987

Manage all land resources held under the Act for conservation purposes.
Preserve indigenous fisheries and protect freshwater fish habitats.
Advocate for conservation of natural resources.
Prepare conservation management strategies for all natural resources, areas and species administered by the Department.

Reserves Act 1977

Manage the majority of lands of the Crown held under the Reserves Act.
Ministerial approval required for a number of activities on reserves not managed by the Department.

National Parks Act 1980

Manage national parks to achieve the purpose of the Act.

Marine Reserves Act 1971

Manage marine reserves to achieve the purpose of the Act, which is to preserve for “scientific study of marine life, areas of New Zealand that contain underwater scenery, natural features, or marine life, of such distinctive quality, or so typical, or beautiful, or unique, that their continued preservation is in the national interest”.

Wildlife Act 1953

Manage wildlife sanctuaries, wildlife refuges and wildlife management reserves.
All wildlife as defined in the Act is protected throughout New Zealand and the Exclusive Economic Zone except for species listed in specified schedules. This excludes introduced species, fish, almost all marine species and most   insects.

Trade in Endangered Species Act 1989

Investigate species threatened by trade.
Execute a wide variety of powers relating to the implementation of the Act.
Fulfil New Zealand’s obligations under the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES).

Marine Mammals Protection Act 1978

Manage marine mammal sanctuaries.
Act protects marine mammals.

Wild Animal Control Act 1977

Includes coordinating the policies and activities of departments, local authorities and landowners in relation to the control and eradication of any species of wild animal (pest species).

Native Plants Protection Act 1934

Provides for the Governor-General to declare any native plant to be protected. It is an offence to take such a plant on public land or from private land without landowner permission.

Resource Management Act 1991

The preparation and recommendation of New Zealand coastal policy statements under s57.
The approval of regional coastal plans in accordance with Schedule 1.
The monitoring of the effect and implementation of New Zealand coastal policy statements and coastal permits for restricted coastal activities.

The Ministry for Primary Industries administers the Fisheries Act 1996, which has the purpose of utilising fisheries resources while ensuring sustainability. Under s9:
“…all persons exercising or performing functions, duties or powers under this Act, in relation to the utilisation of fisheries resources…shall take into account the following environmental principles:

  • associated or dependent species should be maintained above a level that insures their long-term viability:
  • biological diversity of the aquatic environment should be maintained:
  • habitat of particular significance for fisheries management should be protected”.

The Ministry of Primary Industries also administers the Forests Act 1949. Under this Act, the felling of indigenous trees for timber requires a registered sustainable forest management plan or permit and harvest is to be in accord with an annual logging plan. The Forests Act 1949 regulates the harvesting, milling and exporting of indigenous timber and gives landowners options for managing their indigenous forests. Under the Forests Act, indigenous timber can only be milled if it has been harvested under a sustainable forest management plan (SFM) or permit, or under circumstances specified in the Act (for example, timber from windthrown trees). Timber that does not meet the circumstances specified in the Act cannot be milled, and the felling of trees in an area subject to a SFM plan or permit, other than in accordance with the plan or permit, is an offence. Through these controls, the Forests Act discourages unsustainable harvesting and clearance of private indigenous forests and provides for their sustainable management. All activities managed under the Forests Act must also be conducted in accordance with the RMA.

Other organisations with roles and responsibilities for indigenous biodiversity

The Queen Elizabeth II National Trust promotes and facilitates the preservation and enhancement of open space under the Queen Elizabeth the Second National Trust Act 1977. This includes negotiating covenants on private land and acquiring open space land in its own account. These powers can be used to protect land when granting resource consents.

The following organisations have statutory roles and responsibilities for indigenous biodiversity protection, maintenance and restoration:

  • New Zealand Conservation Authority and conservation boards
  • Guardians of Lakes Manapouri, Monowai, Te Anau and Wanaka
  • regional fish and game councils, which maintain and enhance populations of indigenous game birds and their habitats

There are also a large number of non-statutory organisations and community groups undertaking biodiversity protection and management roles. Some of these national organisations and their primary activities are listed in table 3 ‘Selection of National Organisations that are not Established by Statute’.

Table 3: Selection of national organisations that are not established by statute

Organisation

Primary activities

New Zealand Landcare Trust and Landcare groups

New Zealand Landcare Trust facilitates sustainable land management and biodiversity initiatives with rural communities. Regional coordinators work with groups around the country, providing support and information to assist them manage their land more sustainably. Landcare groups are groups of people who join together to work on land management issues in their local area.

National Wetland Trust of New Zealand

Aims to increase public knowledge and appreciation of wetland value and to increase understanding of wetland functions and processes. Also aims to ensure landowners and government agencies commit to wetland protection, enhancement and restoration.

Ducks Unlimited New Zealand

Dedicated to wetland and waterfowl conservation. Aims to deliver effective wetland restoration and development along with research, education and advocacy.

Royal Forest and Bird Protection Society of New Zealand

A society that aims to preserve and protect the native plants and animals and natural features of New Zealand and is active on a wide range of conservation and environmental issues. Is involved in advocacy and lobbying work at all levels of government.

New Zealand Ecological Society

A society formed to promote the study of ecology and the application of ecological knowledge. Attempts to encourage ecological research, increase awareness and understanding of ecological principles, promote sound ecological planning and management of the natural and human environment and promote high standards both within the profession of ecology by those practising it, and by those bodies employing ecologists.

New Zealand Freshwater Sciences Society (previously New Zealand Limnological Society)

A society that aims to establish effective liaison between all people interested in any aspect of fresh and brackish water research in New Zealand, and to encourage and promote these interests.

New Zealand Botanical Society and regional societies

Societies of professional and amateur botanists who undertake research, field work, publication and advocacy. Provide botanical expertise and advocate for the conservation and protection of New Zealand native plants.

Ornithological Society of New Zealand and regional branches

Societies of professional and amateur ornithologists. Aim to encourage, organise and promote the study, knowledge and enjoyment of birds and their habitat use particularly within the New Zealand region. Provide ornithological expertise to assist the conservation and management of birds.

New Zealand Plant Conservation Network

Organisation that aims to protect and restore New Zealand’s indigenous plant life and their natural habitats and associated species through dissemination of information about indigenous plant species and communities. Also undertakes conservation activities and runs training programmes to protect threatened plants and communities.

 

Relationships with landowners, Māori and the community

Relationships with landowners

Much of New Zealand’s remaining lowland and coastal indigenous vegetation and wildlife habitats are on private land. Where landowners understand and appreciate the importance of the dependence of indigenous biodiversity on their property management they are more likely to try to protect the relevant areas.

Regional council processes for preparing farm/environment property plans could be extended to directly address terrestrial and freshwater indigenous biodiversity protection. This would require council staff preparing such plans to be aware of existing information about biodiversity values on and close to the property and to seek ecological advice where this is appropriate.

Active protection of indigenous biodiversity on private land usually requires funding for activities such as fencing, animal pest and weed control, and alternative stock water sources. Councils can help by allocating funding to assist landowners to protect and maintain indigenous biodiversity on their properties. They can also assist landowners to apply for other sources of funding and joining multi-agency funding packages (eg, a package involving the district council, regional council, Queen Elizabeth II National Trust and Nature Heritage Fund.

Regulatory provisions are needed as a backup to methods focused on education and practical assistance. These work best when a council is seen to be operating in a principled, thorough, consultative and fair manner.

Freshwater and estuarine habitats have diminished in quality in many areas because of the impacts of increased human settlement and/or land use intensification. Voluntary improvements are encouraged through industry accords (e.g., the Dairying and Clean Streams Accord) and regional council farm planning education and practical assistance are needed, along with regulation-induced improvements in land use practice. Good relationships with landowners should be based on mutual understanding of the biodiversity and other values at risk and the measures needed to reverse the damage, as well as an understanding of economic and commercial imperatives.

Māori landowners

Māori land ownership can provide additional challenges and opportunities for councils. A major challenge can be identifying the appropriate person to talk to about biodiversity values on land that is in multiple ownership (note powers to amalgamate land are available under Te Ture Whenua Māori Act 1993). Discussions may take time and can be improved where there is continuity of staff involved. Māori relationships with their land are long term. It is important that council staff recognise and appreciate these values.

The Nga Whenua Rahui Fund provides opportunities for protecting biodiversity on Māori land. There can be successful collaborations between the fund and councils (e.g., fencing the indigenous vegetation and margins of Lake Rotoehu in the Bay of Plenty).

Treaty of Waitangi settlements with Te Arawa (for the Rotorua Lakes) and Tainui (for the Waikato River) have included funding for environmental restoration as well as a governance role. This provides opportunities for regional and district councils to work cooperatively with iwi to improve the quality of aquatic ecosystems and to work together to develop policies and objectives for district and regional plans.

The community

The community is becoming increasingly involved in biodiversity protection and restoration activities on public and private land. This can be via:

  • direct volunteering by individuals to work on planting and other ecological restoration activities in agency-run programmes on public land
  • branches or affiliates of national organisations working on public lands
  • branches or affiliates of national organisations working on private lands
  • special-purpose organisations working on public land
  • special-purpose organisations working on species-focused ecological restoration projects on private land
  • volunteers working on species-focused ecological restoration projects on public land
  • special-purpose working on public and private land
  • organisations set up and provided with ongoing assistance by councils
  • major ecological restoration projects involving public agencies, community trusts and extensive sponsorship and fund-raising and ongoing volunteer activities.

Community volunteers can make an important contribution to biodiversity protection and restoration activities throughout New Zealand. Councils can work with these volunteers and volunteer groups to help them make a greater contribution to achieving goals set out in long term plans and RMA plans. Positive things councils can do include:

  • providing advice and resources
  • providing funding
  • helping groups access other sources of funding
  • providing a context through a biodiversity strategy for the region or district
  • establishing a local or regional biodiversity forum
  • recognising the value of sites in plans through policies and objectives to help protect sensitive and/or valuable resources.

Councils can also assist community groups by removing impediments to ecological restoration such as:

  • landfill fees for disposal of non-compostable weed species like ginger
  • requirements for costly and lengthy resource consent processes for ecological restoration activities such as repairing the hydrology in wetlands threatened by surrounding land drainage and undertaking animal pest control operations with aerially applied poison where landowners agree.

Property rights and duties for biodiversity

The Crown has a number of legislative responsibilities for biodiversity that impact on land ownership. This means that rights associated with fee simple titles and pastoral leases are subject to various limitations and duties of care, particularly s17 of the RMA, which places a duty on landowners to avoid, remedy or mitigate adverse effects on the environment.

Responding to and meeting the above challenges and obligations requires, amongst other things, that natural and physical resources, including biota and their habitats, be managed in an integrated manner.

Protected species of ‘wildlife’ (eg, native birds, bats, frogs, lizards, invertebrates) are the property of the Crown (s57 Wildlife Act 1953), both alive and dead, unless lawfully taken by authorities granted under the Act. Gamebirds are also vested in the Crown, but fish and game councils have a regulatory interest in these species. Species of wildlife that are ‘unprotected’ (Schedule 5, Wildlife Act 1953) are not vested in the Crown so the owners and occupiers of land inhabited by these have some rights to take or kill them.

‘Wild animals’ as defined in the Wild Animal Control Act 1977 are specified as introduced species (eg, possums, feral deer, goats and pigs) that have developed pest populations that need controlling. They are also owned by the Crown under s9 but regional councils have a regulatory interest in many under the Biosecurity Act 1993. Their relevance to protection of indigenous biodiversity lies in the damage they can do and the origins of obligations and authority to control their impacts.

Fish (in the wild) and other forms of aquatic life included in the definition of fisheries (eg, shellfish and seaweeds) are vested in the Crown, but specific entitlements and other rights to take or kill are assigned under regulations or (for quota management species) through tradeable Individual Tradeable Quotas and Annual Catch Entitlements under the Fisheries Act 1996. While the RMA has an arguably minor role in controlling the adverse effects on the environment of harvesting fish under the Fisheries Act 1996, this constraint does not apply to the impacts of taking freshwater fish under the Conservation Act 1987 (eg, whitebait fishery). Marine mammals management is the responsibility of the Crown under s3A of the Marine Mammals Protection Act 1978, including control of possession of live animals and dead parts, but the Act makes no explicit claim to any greater property interest.

At the species level of biodiversity most are still the property of the Crown, regardless of the tenure of the lands or waters they inhabit. The public property rights in individual organisms sometimes extend to powers to require protection of their habitats (eg, s63(1)(c) Wildlife Act 1953 prohibits damage to the nests of protected species). Where this is not the case, the owner of the organism (often the Crown) may need to seek appropriate protection of habitat through negotiation or advocacy.

In New Zealand, the Crown’s legal interest in land has always established the basic obligations of a landowner to a duty of care. This duty is also reflected in s17 of the RMA. The RMA has devolved to councils a variety of managerial responsibilities for Crown property interests in lands and waters, including those specified in s354 (including natural waters, geothermal fluids and energy, and beds of navigable rivers).

The take-home message for the debate on property rights and biodiversity maintenance is that, in addition to private property rights, there are also major public property interests to be safeguarded and private property interests that include a duty of care and other obligations not to have significant adverse effects on the environment.

Integrated Management

Achieving integrated management can pose special challenges in relation to biodiversity. This is because of the high level of interconnectedness between ecosystems and the often delayed or long-distance impacts of the use or development of resources.

Integrated management also implies coordinating the planning and management processes under the different legislation that applies to a particular resource. For councils addressing biodiversity, this would include the RMA, Reserves Act 1977, Soil Conservation and Rivers Control Act 1941, Biosecurity Act 1993, Local Government Act 2002 and Local Government Act 1974. For a more integrated approach, councils also need to consider planning and management under statutes administered by other (primarily Crown) agencies (eg, the Conservation Act 1987, Fisheries Act 1996 and Wildlife Act 1953).