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Indigenous biodiversity protection ramped up in National Policy Statement

Home Insights Indigenous biodiversity protection ramped up in National Policy Statement

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Contributed by: Allison Arthur-Young, Simon Pilkinton and Georgia Cameron

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Published on: December 02, 2019


The Government last week released its latest national environmental initiative, the National Policy Statement (NPS) on Indigenous Biodiversity.  The NPS is clearly a significant push by the Government to enforce identification and protection of biodiversity of New Zealand's significant natural areas.  It also includes provisions to protect indigenous biodiversity in plantation forestry and indigenous biodiversity outside significant natural areas.  Submissions on the NPS-IB are due on 14 March 2020.

The NPS-IB seeks to protect terrestrial biodiversity.  It is not intended to apply to the coastal marine area (which is addressed in the New Zealand Coastal Policy Statement) nor waterbodies and freshwater ecosystems (which are proposed to be addressed by the NPS for Freshwater Management 2019 that has recently been subject to consultation).  The only exceptions to this are: provisions relating to restoration and enhancement do apply to wetlands; and the requirements relating to regional biodiversity strategies apply to indigenous biodiversity in the coastal marine area and in waterbodies and freshwater ecosystems.

We summarise the key elements of the NPS-IB below.

A precautionary approach must be adopted by councils towards proposed activities where effects on indigenous biodiversity are uncertain, unknown or little understood but potentially significantly adverse.  For resource consent applications this will mean a higher burden on applicants to produce comprehensive assessments of biodiversity effects and we can foresee councils using s 92 requests relating to biodiversity effects assessments.  The NPS-IB also specifically directs councils to include requirements in their plans considering indigenous biodiversity in assessments of environmental effects.

Councils will be required to identify Significant Natural Areas (SNAs) where there are significant vegetation and habitats of indigenous fauna and classify such areas as High or Medium.  SNAs will need to be identified using the framework set out in Appendix 1 of the NPS-IB, which sets out four biodiversity attributes: representativeness; diversity and pattern; rarity and distinctiveness; and ecological context.  An SNA will qualify for a High rating if it has one (or more) of the four attributes that are rated as "high".    

Councils must manage adverse effects on and around SNAs.  Once SNAs are identified, there is express direction on councils to manage adverse effects, including through the use of "avoidance" provisions for certain adverse effects on SNAs subject to specified exceptions.  New subdivision, use or development must avoid adverse effects on High SNAs.  Adverse effects on Medium SNAs can be managed using the effects hierarchy if it meets certain other criteria, however, these thresholds are likely to be hard to meet for private developments.

Outside SNAs, councils are required to maintain indigenous biodiversity including by specifying controls on subdivision, use and development where necessary to maintain indigenous biodiversity and applying the effects management hierarchy to adverse effects.  In areas outside SNAs, the effects hierarchy is able to be applied, including for biodiversity compensation to be considered as an alternative to biodiversity offsetting.

Councils also have obligations to promote the restoration and enhancement of identified wetlands; SNAs whose ecological integrity is degraded; "important" connection and buffer areas; and former wetlands.

Policies on increasing indigenous vegetation cover require regional councils to set targets of at least 10% for increasing indigenous vegetation cover in urban and rural areas.  Regional councils also have to prepare regional biodiversity strategies in collaboration between regional councils, territorial authorities, tangata whenua and communities.

The NPS-IB also contains provisions to manage biodiversity in plantation forests.  It introduces the new concept of plantation forests biodiversity areas (PFBA), which are "deliberately established" forests that contain either significant indigenous vegetation and/or habitat for indigenous fauna.  Where a PFBA is identified, it will need to be managed by plan rules that give effect to the relevant NPS-IB provisions, rather than under the existing National Environmental Standard for Plantation Forestry.  A PFBA will need to be managed to maintain long-term populations of threatened or at-risk indigenous fauna over the course of consecutive rotations, and to manage adverse effects on threatened or at risk flora.

Overall, we consider proposed NPS-IB will have significant impacts on new subdivision, use or development, particularly where this is proposed in or around identified SNAs.  As a result, the extent of SNAs that may be identified within a district and region will be critical.  We would encourage any business that operates in areas with natural biodiversity (particularly, but not limited to, rural or greenfields areas) to get involved in the NPS-IB consultation and the consequential plan changes to give effect to the NPS-IB.

If you would like advice, please get in touch with one of our experts.

This article is intended only to provide a summary of the subject covered. It does not purport to be comprehensive or to provide legal advice. No person should act in reliance on any statement contained in this publication without first obtaining specific professional advice. If you require any advice or further information on the subject matter of this newsletter, please contact the partner/solicitor in the firm who normally advises you, or alternatively contact one of the partners listed below.

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