Fight for conservation land to continue in Supreme Court

Forest & Bird says that many New Zealanders will be baffled by the Minister of Conservation seeking to overturn an appeal court decision that she acted illegally in trying to remove specially protected land from the Ruahine Forest Park to allow a dam.

“The Court of Appeal carefully considered the purpose for which land is protected under the Conservation Act and held that the Minister can’t treat public conservation land as if there were a “revolving door” between protected and not protected.

“The ultimate outcome sought by this challenge is to enable the controversial Ruataniwha Dam to proceed. We doubt New Zealanders would consider it to be the Conservation Minister’s role to support irrigation schemes like this,” Forest & Bird’s Acting Chief Executive Mike Kotlyar says.

“If it goes ahead, this land swap will set a precedent for up to 1 million hectares of specially protected conservation land, creating the possibility that these areas can be reclassified and destroyed. The land that the Minister of Conservation wants to swap includes mature forest that is home to threatened wildlife, including long-tailed bats and falcons.

“The Department of Conservation has previously accepted that the land, which borders the Makaroro River and Dutch Creek, has high conservation values and that the special protection would not have been revoked without the land swap,” Mr Kotlyar says.

The company behind the Ruataniwha Dam is an investment company that is wholly owned by the Hawke’s Bay Regional Council. The investment company has also applied for leave to appeal the Court of Appeal’s decision.

In its majority ruling in August, the Appeal Court made the following statements:

[62] [The Conservation Act] … does not permit a revolving door between the designations of stewardship area and conservation park based on whether the land concerned happens to be an arena for recreation at a given moment.

[77] This anomaly invites the inference that the Department was not concerned with reaching the correct statutory designation and serves to highlight the overall artificiality of the Department’s decision-making process. … It must be contrary to the conferral of specially protected status under the [Conservation] Act, which secures the land for the options of future generations, to then carve away discrete sections from the broader conservation park for individual assessment.

[80] In our judgment the only inference available from the process adopted throughout by the Department and endorsed by the Director-General is that it led to an unlawful decision. In substance, if not in name, the Director-General applied the s 16A test in deciding whether to exercise his revocation power under s 18(7). Significantly, he did not identify the purpose or purposes of the Act served by the decision unless it was the purpose of global or overall enhancement provided by s 16A(2). The revocation decision was unlawful and should be set aside.