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Indigenous biodiversity

Case law examples

Relationship of section 6(c) to section 5 of the Resource Management Act 1991

In Minister of Conservation v Gisborne District Council (A16/2000), the Environment Court held that individual economic wellbeing and private ownership rights to clear indigenous vegetation were outweighed by the national importance of the protection of such an area of indigenous biodiversity.

What aspects of biodiversity are addressed in section 6(a)

In Gill v Rotorua District Council W29/93 the Environment Court found that natural character includes ecosystems and ecological processes, and that succession and regeneration are a part of natural character.

A series of decisions collectively identify the following elements as part of natural character: landforms and coastal features, seabed, terrestrial and aquatic biota and ecosystems, water, natural tidal movements, natural sedimentation, natural lake levels, animal migrations/movements.

The relevant decisions include:

Addressing section 6(c)

In the decision Minister of Conservation v Western Bay of Plenty District Council (A71/2001) the Environment Court determined that for a district council the context of ‘significant’ is the district. In the case of Western Bay of Plenty there was an incomplete schedule of significant areas. The Judge concluded that the most appropriate way to address s6(c) was to expand that schedule. The schedule was to be part of a suite of provisions including incentives already introduced by council.

In Royal Forest and Bird Protection Society Inc and others v Central Otago District Council (A128/2004) the Environment Court observed that a non-regulatory approach had not been effective, especially in lowland and montane areas. Decline was continuing. While the Council had a schedule this was primarily of areas already protected. As it seemed unlikely that there would be a survey to develop a more complete schedule a rule would be needed to address s6(c). Incentives should be pursued but on their own they would be inadequate.

Environmental compensation and biodiversity offsets

In JF Investments Limited v Queenstown Lakes District Council (C48/2006) the Environment Court conducted a detailed analysis of the legal basis by which environmental compensation or biodiversity offset is envisaged by the Act.

The Judge stated in paragraph 42:
“We conclude that off-site work or service or covenant, if offered as environmental compensation or biodiversity offset, will often be relevant and reasonably necessary under section 104(1)(i), if it meets most of the following desiderata:

  1. It should preferably be of the same kind and scale as work on-site or should remedy the 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.”

In Director-General of Conservation v Wairoa District Council (W081/2007) the Environment Court considered a proposal whereby an East Coast farm would clear 354 hectares of grazed kanuka for the purpose of increasing stock numbers. The offset or environmental compensation would be legal protection and fencing of 799 hectares of native vegetation on the same property from stock. There would also be pest control in this area. The Court considered that the proposed offset would produce a better outcome in that the life-supporting capacity (including ecological integrity) of the remaining forest area would be enhanced and assured.

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