Going Backwards – Policy and protection of wildlife and habitat

What does the change of government mean for environmental policy and wildlife protection? Pip Wallace investigates.

The environmental rollbacks have started and there are more on the horizon. Plenty of interest groups, property owners and resource users are cheering on the walking back of environmental law and policy in Aotearoa New Zealand. Goodbye red tape, compliance costs and hassle, hello streamlined resource use and management.

For wildlife protection there is no cheering. The rolling back of environmental protection seems counter-intuitive at a time when human induced climate change deepens the biodiversity crisis and ecosystem degradation and failure.

Reporting on the latest figures the Ministry for the Environment & Stats NZ (2023) identify that the “Impacts of climate change are cascading through ecosystems and compounding other threats such as invasive species and human disturbances”. In addition, habitat loss and climate change interact to exacerbate population decline and extreme weather events have direct and damaging impacts on our ecosystems, as well as people. The report identifies a series of losses to habitat and species including the risk to Tara iti (Fairy Tern) of losing its breeding habitat to storm surges, and the wiping out of an entire breeding season of Kororā (Little Penguin) on Otata Island and the growing spectre of wildfires.

Faced with deepening problems for wildlife, any potential reduction in protection is disquieting for all those invested in the protection of taonga species and habitat. The new (and now repealed) Natural and Built Environment Act 2023 (NBEA) provided valuable reshaping of approaches to protection, including greater incorporation of Te Ao Māori approaches, which in turn underpin protection for the natural environment. The law was intended to be supported by streamlining of local authority functions, fewer resource plans and stronger spatial planning at the regional level. These measures (amongst others) support better planning and protection, which we will explain in context shortly. But with a lifespan of 123 days the new law was gone by lunchtime, forcing a reversion back to the Resource Management Act 1991 (RMA).

This regulatory ping pong is accompanied by government commitment to review the National Policy Statement for Indigenous Biodiversity 2023 (NPSIB) and the National Policy Statement for Freshwater Management 2020 (NPSFW). The NPSIB is an extreme example of wildlife protection policy subject to the vagaries of political preference. Way back in the deep recesses of the early 2000s an National Policy Statement was proposed and finally introduced as a draft in 2010. Politically contested, it finally saw policy daylight in 2023. Criticism has been levelled at the lack of central government direction under the RMA, for which, the NPSIB with its tortured history, must surely be the poster child.

Underlying this slow progress are the social, cultural, and economic contests which arise in relation to environmental management. Concepts such as property rights, economic efficiency, and reduction in regulatory red tape feature heavily in the debates related to protection of biodiversity on private land. The identification, mapping, and protection of Significant Natural Areas (SNA) – the policy vehicle developed to secure habitat and species protection – have been loudly decried by landowners and interest groups. In addition, Iwi, with a history of land loss and confiscation, have concerns related to infringement of rights guaranteed under the treaty. Accordingly, there has been significant push back against the provisions of the NPSIB which extend the identification and restrictions that may apply to land classed as an SNA. Policymakers have paid careful attention to these concerns as evidenced by the detailed provisions in the NPSIB, for instance, by developing policy exceptions for classes of land or resource users. But for many this is not enough; the lobbying has been loud and the NPSIB may also soon be “gone by lunchtime”.

We seem to have come to the thin edge of the wedge – caught between a deepening environmental crisis and landowners and resource users struggling with the increasing burden of amending practices to limit harm to the environment. Due to climate change, times are changing and faster than we apprehend. The science tells us we need to build greater resilience into our systems and yet the cost of this is unacceptable to many.

To account for this, in certain international and domestic policy regimes, the principle of non-regression of environmental law is applied. The point of this principle is that when environmental protection is secured through law and policy, the ability to weaken or “walk back” the law should be limited. In this manner, the environment has the benefit of a steady and progressive approach and in addition trading parties have a degree of security that the regulatory backdrop is on a level playing field.

Walking back environmental protection will produce fewer beneficial outcomes for threatened habitats and species in the Miranda Pūkorokoro locale. The area is currently subject to a raft of conflicting and confusing policy instruments because of incremental legislative effort and spatially bound agency mandates. A more consistently protective approach to habitat and species protection is required. The integrated regional approach to planning established by the NBEA provided a key opportunity to deliver more consistent outcomes for biodiversity protection, backed up by spatial planning enabled by the Spatial Planning Act 2023.

Currently approaches to demarcation of Significant Natural Areas (protected under s 6(c) RMA) can be a bit hit and miss. In Pūkorokoro, a portion of the area is identified and mapped by one Council as an SNA, but this protection stops abruptly due to agency boundaries. Same area, same vegetation, same species but different territorial authority. This demonstrates a lack of horizontal consistency between agencies. Vertical inconsistency is also apparent. For instance, there is a controversy brewing in relation to a development in Matarangi, Coromandel, where a site has been cleared which was identified by the Waikato Regional Council as an SNA in a desktop exercise, but not included in the local District Plan. As this matter is currently before the courts, we cannot examine further, but it is certainly one to watch. Our environments would benefit from a more consistently protective approach. [SEE SIDEBAR PMNT submission to WRC Coastal Plan]

Wildlife mobility is a confounding issue for consistent protection. Threatened birds and bats range (and often widely) as part of their life cycle and levels of protection may alter depending upon their whereabouts. Attaching protection to the threatened species in addition to significant habitat is a more consistently protective mechanism. The NPSIB introduced policy protection for highly mobile species which is progressive and would support extended protection of many species currently found at Pūkorokoro Miranda. Of the forty-nine bird and bat species named as highly mobile in Appendix 2 of the NPSIB over half inhabit the Miranda Pūkorokoro area. These include Ngutu parore Wrybill, Huahou Red Knot, Kuaka Bar-tailed Godwit, Pohowera Banded Dotterel, Tārapukā Black-billed Gull, Tara/ White-fronted Tern, Moho-pererū Banded Rail and Matuku/Bittern.

The NPSIB provides stronger wildlife protection by strengthening provision for identifying, mapping, and protecting SNAs, making agency responsibility clear and providing for protection of highly mobile fauna areas outside of SNAs. These hard-won policy gains for wildlife were overdue but will now be reviewed by the government.

In any review it is likely that strong claims related to property rights, practicality and legitimacy will be raised in opposition to SNAs. These require careful consideration and examination in context. At the same time, it must be remembered that with rights come duties, of which we would argue, protection of wildlife is one. The extinction profile for biodiversity is very different in Aotearoa than in many other countries. We have unusually high numbers of threatened and at-risk species and many of these are found on private land.

In the Pūkorokoro Miranda area threatened and at-risk species move daily between protected areas such as the Ramsar site, the Robert Finlay Reserve (QE II covenant), Department of Conservation wildlife reserve, and unprotected coastal marine areas as well as unprotected terrestrial and wetland areas on private land. Where private land is subject to an SNA, protection of biodiversity is elevated in situations where adverse effects will be caused to biodiversity, for instance from new subdivision and development. Under the RMA any development that requires a resource consent, will be required to identify threatened and at-risk habitat and species as part of the Assessment of Effects process set out in Schedule 4, regardless of whether it is an SNA. But the importance of notation as an SNA is that the owner of the property and the relevant agencies will be put on notice as to the values at the site. This avoids issues such as clearance of sites where threatened species subsist but are cryptic or not recognised as such.

A better approach to wholesale dismantling of much needed SNA protection is to locate opportunities to support and incentivise landowners to be kaitiaki guardians of the land, water, and biodiversity, and to work in conjunction with agencies and local interest groups to produce gains for all. Across the catchment there are many fine example of resource users, iwi and community groups taking significant steps to restore and enhance the environment. Supporting and enabling extension of these efforts is to be encouraged. In the Pūkorokoro area this includes the work of the Tiaki Repo ki Pūkorokoro Trust and the Western Firth Catchment Group.

In addition to reviewing the NPSIB, the Government will replace the National Policy Statement for Freshwater Management 2020 and the National Environmental Standards for Freshwater to better reflect the interests of all water users. This focus on commercial water users, again looks grim for ecosystems, habitat, and species. The State of the Gulf reports issued by the Hauraki Gulf Forum chart a steady deterioration in water quality in the Firth, largely resulting from activities in the catchment.

Following on the heels of these changes the Government Coalition Agreements state the intention to replace the Resource Management Act 1991 with new resource management laws premised on the enjoyment of property rights as a guiding principle. This bald statement has been softened in subsequent press releases with reference to the low bar of ‘while ensuring good environmental outcomes’.

We do not have space to unpack this here, but to say that ensuring ‘good environmental outcomes’ inevitably involves placing limits on the exercise of property rights. Further that the bare focus on ‘rights’ obscures consideration of responsibilities. To face the climate challenge and deepening biodiversity crisis, careful consideration of the shaping of these responsibilities is required to support environmental resilience and sustainability. Finally, property rights are simply one subset of a wider set of ‘rights’ evident in modern systems of environmental law. In Aotearoa New Zealand we have additional rights including those defined by Te Tiriti and rights afforded to nature through the concept of legal personhood.

This article is from our PM News Magazine – Issue 131 February 2024. To learn more about the work of the Pūkorokoro Miranda Naturalists’ Trust you can subscribe to our emails here.