The Government has released a draft National Policy Statement for Indigenous Biodiversity (NPS-IB) for comment. Submissions on the draft NPS-IB and accompanying discussion document close on 14 March 2020.
This article briefly summarises the key components of the NPS-IB, notes some differences between the NPS-IB and previous National Policy Statements and highlights two of the key implementation requirements - the requirement for territorial authorities to identify Significant Natural Areas (SNAs) and the requirement to avoid (some) effects on those areas.
Before getting into the implementation requirements, the policy
framework of the NPS-IB is important to understand.
The purpose of the NPS-IB is to set out objectives and policies in relation to maintaining indigenous biodiversity and to specify what local authorities must do to achieve those objectives. This directive approach to local authority requirements is unique to the NPS-IB.
There are 6 objectives and 15 policies contained in the NPS-IB. The objectives are:
- To maintain indigenous biodiversity.
- To take into account the principles of the Treaty of Waitangi in the management of indigenous biodiversity.
- To recognise and provide for Hutia Te Rito in the management of indigenous biodiversity.
- To improve the integrated management of indigenous biodiversity.
- To restore indigenous biodiversity and enhance the ecological integrity of ecosystems.
- To recognise the role of landowners,
communities and tangata whenua as stewards and kaitiaki of
indigenous biodiversity by:
a) allowing people and communities to provide for their social, economic and cultural wellbeing now and in the future; and
b) supporting people and communities in their understanding of and connection to, nature. The policies relate to and expand on these objectives.
The policies then expand on these objectives and link to the implementation requirements imposed through Part 3 of the NPS-IB.
Points of uniqueness
The NPS-IB is different in approach to the other existing National Policy Statements. In summary, those points of difference are:
- The majority of the document does not contain objectives or policies, but directives to local authorities on what they must do to achieve the objectives of the NPS-IB. We expand on two of these directives below in detail (in terms of the identification of significant natural areas (SNAs) and the avoidance of adverse effects).
- The NPS-IB does not apply to indigenous biodiversity in the coastal marine area or freshwater ecosystems (with the exception of the provisions related to restoration and enhancement of wetlands and regional biodiversity strategies). This is due to the coverage of the NPS-FM and the NZCPS.
- The NPS-IB expressly states that where there is conflict between the provisions of the NPS-IB and the NZCPS, the provisions of the NZCPS prevail.
- The NPS-IB contains two
interpretation sections. The first of which contains fundamental
concepts that cannot be adequately described by a short definition.
This section includes the concepts of:
- 'Hutia Te Rito' which (among other things) is described as an overarching concept than can incorporate the values of tangata whenua and the wider community into the way indigenous biodiversity is managed so that it is maintained. This is a critical concept as all local authorities are required by the NPS-IB to recognise and provide for Hutia Te Rito in the management of indigenous biodiversity.
- 'Indigenous biodiversity' with biodiversity having the same meaning as 'biological diversity' in the RMA.
- 'Maintenance of indigenous biodiversity' which requires at least no reduction (from the date the NPS-IB commences) in a range of matters which include the size of populations of indigenous species, indigenous species occupancy across their natural range, connectivity between and buffering around ecosystems, and their resilience and adaptability.
- 'Adverse effects on indigenous biodiversity' which include but are not limited to the matters specified in the NPS-IB, which include loss of representation or extent, disruption of sequences, mosaics or ecosystem function, fragmentation, loss in population size, degradation of mauri, pest vegetation or fauna incursions, disruption by people and their pets and livestock, reduction in people's ability to connect with and benefit from biodiversity.
- Biodiversity compensation and biodiversity offset are defined (which link to principles in the applicable schedules). Both apply after appropriate avoidance, remediation and mitigation measures have sequentially applied. With biodiversity offsets achieving a no net loss of, and preferably a net gain to, indigenous biodiversity values.
- Existing activities are defined to include a subdivision, use or development that is lawfully established at the commencement of the NPS-IB but does not include a land use covered by section 10 of the RMA (existing use rights). There are provisions that relate to providing for 'appropriate' existing activities that have already modified indigenous vegetation and habitats of indigenous fauna.
As noted above, the focus of the NPS-IB is on the implementation requirements imposed on local authorities. In summary, the implementation requirements are vast, uncertain (at times) and onerous. Among other things they include requirements to:
- Recognise and provide for Hutia Te Rito in implementing the NPS-IB.
- When making or changing policy statements and plans, Councils must involve tangata whenua by undertaking consultation that is early, meaningful and in accordance with tikanga Māori, collaborate with tangata whenua to identify taonga and develop objectives, policies and methods that recognise and provide for Hutia Te Rito, take all reasonable steps to incorporate mātauranga Māori and provide opportunities for tangata whenua to exercise kaitiakitanaga over indigenous biodiversity and be involved in decision-making.
- Must manage indigenous biodiversity in an integrated way.
- Must promote the resilience of indigenous biodiversity to climate change by at least providing for the maintenance of ecological integrity through natural adjustments of habitats and ecosystems, considering the effects of climate change when making decisions on restoration and enhancement proposals and biosecurity risks, and maintaining and promoting the enhancement of connectivity.
- Must adopt a precautionary approach where the effects are uncertain, unknown or little understood, but are potentially significantly adverse.
Two of what we consider to be key implementation requirements - identification of SNAs and the avoidance of effects on SNAs are explored in more detail below.
Identification of SNAs
Territorial authorities are expressly required to undertake a district wide assessment to determine if an area is an area of significant indigenous vegetation and/or significant habitat of indigenous fauna and if it is, to classify those areas as either 'High' or 'Medium'. Appendices to the NPS-IB set out a methodology in Appendix 1 for assessment and in Appendix 2 for classification. This must be completed within 5 years (unless the plan already identifies such areas and those conform with Appendix 1). Those territorial authorities that already identify significant areas within their plans have 5 years to classify those as high or medium in accordance with Appendix 2.
Territorial authorities must notify the required plan or plan changes necessary to map the identified areas within 6 years of the NPS-IB commencing. Following notification of that plan or plan change, it must, at least every two years, notify a plan change to add any area that has subsequently been identified as an SNA as a result of an assessment undertaken as part of a resource consent application, notice of requirement or other means.
The Appendix 1 process to identify SNAs, requires at a minimum that every assessment must include a map of the significant natural area, a description of its attributes, a description of the indigenous vegetation, fauna, habitat and ecosystems present and additional information such as key threats, pressures and management requirements. This must be undertaken by a suitably qualified ecologist and while the issues with access to private land are identified, there are no solutions posed (other than noting that where permission to access a property on a voluntary basis is not given territorial authorities should rely on a desktop assessment by an ecological expert, with powers of entry under section 333 of the RMA to be used only as a last resort).
Avoidance of effects
Local authorities must ensure that in relation to any new subdivision, use or development that takes place in or affects an SNA that specified effects are avoided, which include (all other effects are managed by applying the effects management hierarchy):
- the loss of ecosystem representation and extent,
- disruption to sequences, mosaics or ecosystem health,
- fragmentation or loss of buffering or connectivity within the SNA and between other indigenous habitats, and
- a reduction in population size or occupancy of threatened species using the SNA for any part of their life cycle.
There are two exceptions to this avoidance requirement for activities in or affecting SNA's identified as medium - which generally relate to functional or operational need for nationally significant infrastructure, mineral extraction, customary activities on Māori land and use of Māori land in a way that will make a significant contribution to the wellbeing of tangata whenua; or relate to a single dwelling on an allotment created before the NPS-IB commenced.
There is a final set of exceptions to the avoidance policy where the effects are arising from activities for the purpose of protecting, restoring or enhancing a SNA, the use or development addresses a severe and immediate risk to public health or safety, an area of kanuka or manuka is identified as an SNA solely because it is at risk form myrtle rust, or where indigenous vegetation has been established or managed for a purpose other than maintenance, restoration or enhancement of indigenous biodiversity and the use or development is necessary to meet that other purpose.
There are also requirements around managing adverse effects in plantation forests, effects on geothermal ecosystems, management of effects of existing activities on SNAs, rules applying outside SNAs, requirements around identifying and identified taonga (which includes a requirement that territorial authorities change their district plans to include the description of identified taonga, their values and description or map of their location (where appropriate)), highly mobile fauna, restoration and enhancement of indigenous vegetation cover (which includes a requirement on regional councils to first assess the percentage of the urban and rural areas in its region that have indigenous vegetation cover), the preparation of regional biodiversity strategies (to be prepared in accordance with Appendix 5 within six years of commencement of the NPS-IB), assessing effects (which requires local authorities to change their plans and policy statements to require the provision of certain information on effects), and the development of a monitoring plan by regional councils.
Submissions close of the draft NPS-IB and accompanying discussion document on 14 March 2020. Please contact us if you would like to discuss further.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.