UPDATE: 'Elderly' conservation law already up for review as land swap deal nixed by Supreme Court

Thursday 6th July 2017

A review of the suite of ageing laws that govern the Department of Conservation was being sought well ahead of the Supreme Court's decision to nix a land swap deal that would have enabled one of the country's biggest irrigation schemes, the Ruataniwha Water Storage Scheme.

Prime Minister Bill English told Leighton Smith on NewstalkZB the government would now consider whether to change the legislation "because everyone thought the legislation meant that you could trade a lower conservation piece of land away in return for higher conservation piece of land." Because of the ruling a law change may be needed "because it wouldn’t make sense to take this flexibility out of the system" which allows "eminently sensible" land swaps.

The court today affirmed the Court of Appeal's decision to set aside the decision of Department of Conservation chief Lou Sanson, acting on behalf of his minister, revoking the conservation park status of the 22 hectares of Ruahine Forest Park. It is one of a number of cases where DOC and Sanson have been knocked back by the courts in attempting to find pragmatic solutions to community issues. The past month its shark cage diving permits for operators around Stewart Island were declared void by the courts on the basis they could be issued under the Wildlife Act.

"I think that a lot of our legislation was devised in the 1960s and we do have to look at a refresh of the National Parks Act, the Wildlife Act - the Conservation Act is 30 years old," Sanson said before today's judgment. "Our legislation does need a refresh and we are talking to the minister about that."

Conservation Minister Maggie Barry said in a statement that the 84-page Supreme Court judgment "deals with a number of very complex issues with far-reaching implications which will take some time to work through."

"We will now look at changing the law to ensure we can continue to improve conservation outcomes by having the ability to make land swaps where the outcome would be a win for conservation,” she said.

Barry and the Hawke’s Bay Regional Investment Co have failed to overturn a Court of Appeal ruling that quashed a land-swap deal involving conservation land needed to dam the Makaroro River for an irrigation scheme.

The Supreme Court, in a majority decision, affirmed the judgment of the Court of Appeal setting aside the decision of the director-general of Conservation revoking the conservation park status of the 22 hectares of Ruahine Forest Park. The Royal Forest & Bird Protection Society had challenged the DOC chief's right to "trade away" conservation estate land held for recreational purposes under the Conservation Act for the benefit of commercial interests.

The decision to revoke the special protection of conservation park status was made by director-general Sanson, as the minister’s delegate, in order to facilitate the proposed Ruataniwha Water Storage Scheme through a land exchange. Sanson has said there was a net benefit to the conservation estate because the 170 hectares of private land DOC was to get in exchange had higher conservation value.

But the Supreme Court ruled that a net benefit didn't justify revoking the status of protected land and that section 18(7) of the Conservation Act only allows the status of land to be revoked "where its intrinsic conservation values no longer warrant such protection".

"The minister did not revoke the conservation park status of the 22 hectares because protected status for the land itself was not appropriate," the judgment says. "It is clear that it was. The Court of Appeal was right to conclude that the revocation decision was unlawful because it was driven by the director-general’s view that there was net benefit to conservation ends to be obtained from the proposed exchange which could be implemented only if protected status was revoked. That did not justify revocation under s18(7)."

The Supreme Court majority was made up of Chief Justice Sian Elias, and Justices Susan Glazebrook and Terence Arnold. Justice William Young and Mark O'Regan dissented, saying they would have allowed the appeals because there was nothing in the language of s18(7) to limit revocation to the intrinsic values of the land if the revocation was for the purposes of the Act.

The Supreme Court judgment leaves a question mark over the $275 million water scheme, backed by the Hawke's Bay Regional Council's investment arm, which would create a 93 million cubic metre reservoir to store water in the upper Makaroro river to improve river flows for agricultural use in the Tukituki River catchment. It's estimated it would provide irrigation for 25,000 hectares of farmland in central Hawke's Bay.

A newly elected council had ordered a review of the scheme and the council's funding commitment, which saw the local authority affirm its support albeit with stricter conditions.

The scheme has divided opinion because it would allow farmers in the often parched central Hawke's Bay to ramp up production but also poses risks to the region's waterways that are already under pressure from agricultural and industrial runoff. A full uptake of water under the scheme is forecast to increase the region's annual gross domestic product by between $130 million and $380 million, and create between 1,130 and 3,580 jobs.

Forest & Bird chief executive Kevin Hague welcomed the ruling, saying the government "went all the way to the Supreme Court to allow the downgrade and exchange of part of Ruahine Forest Park, which would have led to the destruction of that land."

"The Supreme Court has confirmed that our forest parks belong to the people of New Zealand and are protected by the Conservation Act,” Hague said in a statement.

(BusinessDesk)

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