Conservation land safe from commercial interests
31 August 2016
The Court of Appeal has agreed with Forest & Bird that DOC's decision to swap specially protected Ruahine Forest Park land by downgrading its status to allow the Ruataniwha Dam is unlawful.

“This decision is a major victory for New Zealand's specially protected lands. This land swap would have set a precedent for up to 1 million hectares of specially protected conservation land, which includes forest parks, conservation parks, and ecological and wilderness areas,” says Forest & Bird lawyer Sally Gepp.

“This case goes to the heart of the purpose of the Conservation Act 1987, and upholds Forest & Bird's position that specially protected conservation land should not be subject to commercial or political whim.”

"Naturally the members, supporters, and staff at Forest & Bird are delighted with this decision. Many of us have worked for years, often on a voluntary basis, to get to this point of ensuring full protection for New Zealand's special areas. This decision is a major victory for New Zealand's natural environment, and Forest & Bird is proud to have played a significant part in bringing it about."

The Hawke’s Bay Regional Investment Company, the investment arm of Hawke’s Bay Regional Council, asked DOC to exchange land it needs for the controversial Ruataniwha Water Storage scheme. The scheme would provide for irrigation of around 25,000 hectares of farm land in central Hawke’s Bay.

The swap was agreed to on the 5th of October by DOC’s Director General Lou Sanson. The proposed site of the dam is on the Makaroro River, and the reservoir would flood part of the Ruahine Forest Park.

Forest & Bird challenged the decision by the Director-General of Conservation last year, saying not only was it illegal, but it also had implications throughout New Zealand for specially protected land under the Conservation Act 1987.

Salient extracts from the Appeal Court's judgement:
[62] In our view, the importance of recreation to park purposes and therefore the management regime serves to distinguish the designation of conservation park from other specially protected areas once the land concerned has crossed into special protection. But it does not permit a revolving door between the designations of stewardship area and conservation park based on whether the land concerned happens to be an arena for recreation at a given moment. In any event, the Director-General did not adopt the expedient approach suggested by Messrs Prebble and Cooke. To do so would be directly contrary to the statutory scheme and undermine the protection that flows from a conservation park’s status as a type of specially protected area.

[68] Once the land crossed the threshold of special protection — in the present case, by way of the Director-General’s declaration and the deeming provisions under s 61 — its designation could only be revoked if its intrinsic values had been detrimentally affected such that it did not justify continued preservation and protection; for example, if the park purposes for which it is to be held were undermined by natural or external forces.”

[77] This anomaly invites the inference that the Department was not concerned with reaching the correct statutory designation and serves to highlight the overall artificiality of the Department’s decision-making process. The 22-hectare land is but a small and peripheral component of a greater 94,000-hectare whole that, to quote the tagline on the Department’s webpage for the RFP, “consists of beautiful bush-covered ranges with a range of recreation opportunities” (emphasis added). It must be contrary to the conferral of specially protected status under the Act, which secures the land for the options of future generations, to then carve away discrete sections from the broader conservation park for individual assessment. While the borderlands of the RFP may not be the immediate site of recreation and enjoyment, they provide a protective cloak for the range of recreation opportunities — tramping, hunting, fishing, camping, mountain biking — enjoyed in the heart of the conservation park. Further, to allow the Director-General’s decision would be to permit the territorial erosion of former forest parks in a way which defeats the statutory presumption of preservation and protection effected by the transitional provisions under s 61

[78] The process followed by the Department and the Director-General confirms that the revocation decision was made for the sole purpose of expediting the proposed exchange. Palmer J accepted that treating the process as a single step would obviate Parliament’s clear intention not to provide a mechanism which allowed specially protected land to be the subject of exchange. But the three successive and interrelated decisions were in fact a single step. The Director-General did not suggest, for example, that the first step would be made without or truly independently of the next two. The decisions were never intended to stand alone. All were collapsed into what was a solitary decision to exchange the land by the means of revoking its designation.

[80] In our judgment the only inference available from the process adopted throughout by the Department and endorsed by the Director-General is that it led to an unlawful decision. In substance, if not in name, the Director-General applied the s 16A test in deciding whether to exercise his revocation power under s 18(7). Significantly, he did not identify the purpose or purposes of the Act served by the decision unless it was the purpose of global or overall enhancement provided by s 16A(2). The revocation decision was unlawful and should be set aside.

ends

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