What does the Supreme Court decision mean for the rest of New Zealand?
The political reaction to the Supreme Court’s recent decision in the Ruataniwha dam issue has been as interesting as the court’s opinion itself.
The decision relates to the long-running attempt by the Department of Conservation—at the behest of its minister—to exchange of 22 hectares of Ruahine Forest Park for 170 hectares of nearby non-conservation land, so that the Ruataniwha water storage scheme could go ahead. Without the 22 hectares of forest park land, the scheme is dead in the water—filling the reservoir would inundate that portion of the Hawke’s Bay landscape.
What stood in the way of the exchange was the fact that the Ruahine Forest Park has the status of conservation park land, and such land cannot by law be the subject of an exchange. In order to bring it into play as a tradable commodity, the 22 hectares would have to have its specially protected status revoked.
DOC’s director-general believed he was entitled to do that—to revoke the status of the 22 hectares, in order to acquire a much larger block of land offered by the company wishing to build the dam, and to thereby clear the way for the scheme to proceed.
Forest and Bird disagreed, and took the Minister of Conservation to court. In 2016, the High Court endorsed the director-general’s approach. Forest and Bird appealed the High Court’s decision to the Court of Appeal, which set aside that decision. The Minister of Conservation and the Hawkes Bay Regional Investment Company then appealed that decision to the Supreme Court.
On July 6, the Supreme Court dismissed the appeal. Its 85-page decision said that the Court of Appeal got it right: specially protected conservation land cannot have its status revoked on the basis of an exchange that enhances net conservation value.
Conservation status, the court said, is not a revolving door. Protection cannot be traded away because a better offer comes along.
Once land qualifies for special protection, “instrumental values (such as, perhaps, in maximising the conservation estate) are foreclosed by the legislation”.
Moments after the decision was released, the Prime Minister announced that the law would have to be changed.
The Minister of Conservation added airily that land swaps were DOC’s “core business” (though this would likely be news to most people, given that by the minister’s own tally only “a couple of these” are done in any year). Land swaps, she said, “ensure we get better conservation gains”—a comment that mirrored the Prime Minister’s claim that “everyone thought the legislation meant that you could trade a lower conservation piece of land in return for a higher conservation piece of land”.
Perhaps he and his officials thought that, but I doubt if many people outside the Beehive did—certainly for land with a “no-swap” prohibition on it, which includes everything in the conservation estate except stewardship land.
The PM’s remarks imply that the Ruataniwha case was about “trading up” from lower to higher conservation land. As the Supreme Court makes clear, the two blocks under consideration—the 22 hectares of Ruahine Forest Park land and the 170 hectares of nearby land known as the Smedley block—are evenly matched in conservation value.
Evenly matched, but intrinsically different—and herein lies a problem: how do you compare values that may be incommensurable?
The Ruahine land has rare oxbow wetlands and habitats for certain threatened species, while the Smedley land has a different underlying geology, and offers a valuable ecological addition to the conservation portfolio of the area.
The difficulty is that once you start trying to rank conservation values it’s like ranking your children. One might be a gifted violinist, but another might be a born comedian—how would you rank those attributes? You might say, “Oh, the world has a plethora of violinists but a paucity of comedians.” Would that justify investing more in one child than another? When resources are scarce—either in a family or the Department of Conservation—it’s a dilemma.
In taking the case to the Supreme Court, DOC and its minister believed their had the right to make that sort of ranking evaluation, to “enhance the conservation values of land managed by the Department and promote the purposes of the Act”, in the director-general’s words.
This is an expansive view of DOC’s managerial responsibility. But in maximising its freedom and flexibility to run its conservation “business”, the department has perhaps paid more attention to relativity and net gain, and less to its obligation to preserve and protect specific tracts of conservation land.
And it was this point that the Supreme Court spoke to emphatically in its decision. Relativity analysis, it said, is not permissible in a decision to revoke conservation status. As the Court of Appeal put it, “Once the land crossed the threshold of special protection . . . its designation could only be revoked if its intrinsic values had been detrimentally affected such that it did not justify continued preservation and protection.”
The court added that in the Ruahine situation the decision to revoke would pave the way for the land to be submerged and cease to be land; “there could not be a more fundamental corruption of its intrinsic value”.
Revocation, it concluded, can’t be used as a management tool.
What the Supreme Court does is sheet home the connection between conservation status and the value of the land having that status.
It shifts attention away from the broad managerial view that some other land, somewhere else, might be more useful.
“It was not enough,” the court said, “that on a ‘relativity analysis’ there was considered to be a margin, on balance, in favour of the Smedley land in the swap. Gain in exchange of land was not the right question in considering revocation of protected status.”
A further finding was that revocation and exchange need to be kept separate in DOC’s management of land. You can’t work backwards from the goal of a land swap to devising stratagems to facilitate such a swap. Conservation status can only be revoked if the basis for that status is no longer there—an important line in the managerial sand.
What is especially heartening about the Supreme Court decision is that it underscores the permanence of special protection under law. In a fast-changing society, permanence can seem like an old-fashioned virtue, something doomed to be swept away by the exigencies of economic growth. In the court’s view, unless and until the intrinsic values of protected land are lost, protection exists to permanently maintain those values and safeguard the options of future generations.
Ruataniwha, once again, focuses attention on the category of conservation land known as stewardship land. Only stewardship land can be exchanged to achieve the kind of “net gain” that government ministers and DOC officials are so eager to talk about. And it is for this reason—its usefulness as a trading item—that stewardship land has remained unclassified in the 30 years since it was placed in its “statutory holding pen”.
That was never the intention when the Conservation Act was created in 1987; stewardship land was expected to be assessed and either given higher categories of protection appropriate to its conservation values or removed from the conservation estate because it didn’t meet the threshold for protection.
The assessment has never happened, and is not likely to. “It wouldn’t make sense to take this flexibility out of the system,” said the Prime Minister. When you’re a trader, why would you limit the commodities available for exchange? But what looks to the PM like flexibility in the conservation market looks to others—including the Parliamentary Commissioner for the Environment—like a lack of certainty and the prospect of never-ending disputes over land use.
Flexibility or certainty. Which do we value more?