Forest & Bird to consider court decision over Ruataniwha

Forest & Bird is carefully considering a decision from the High Court released earlier today on the Ruataniwha Dam land swap as it has widespread legal implications for every other specially protected area of land in New Zealand.
 
Forest & Bird had challenged a decision by the Director-General of Conservation to revoke the specially protected status of part of the Ruahine Forest Park in Hawke's Bay, in order to exchange it for other land. 

The DOC decision was prompted by an application from the dam company behind the Ruataniwha Dam (regional council owned trading entity HBRIC), which wants to flood the 22 hectare area of public conservation land.

Although Justice Palmer agreed with many of Forest & Bird's legal arguments, he ultimately found that the DOC decision was within the broad purpose of the Act. 

"The judge's very first point is that this case goes to the heart of the purpose of the Conservation Act 1987" said Forest & Bird lawyer Sally Gepp.

"That is why it is such a significant case for Forest & Bird. Given the significant implications of this decision for specially protected land throughout New Zealand, Forest & Bird is considering how it will respond, which may include appealing the decision to the Court of Appeal.  We will need to consider our next steps very carefully."

The Court agreed with a separate argument made by Forest & Bird that the land exchange triggers the need for DOC to look at reserving marginal strips (20 m strips of conservation land) along any waterways within the conservation land being disposed of.  Both DOC and the dam company had argued that when DOC gives land away as part of an exchange, this is not a disposal and the marginal strips issue doesn't arise.

The Court said that argument was "simply not tenable" and that whether marginal strips will need to be reserved depends on facts that are as yet unknown including a survey of the boundaries of rivers within the conservation land.  

"This means that the dam company may yet need to try and get a concession to flood any marginal strips, or try and get DOC to grant an exemption, but that can only happen in strictly defined circumstances" said Sally Gepp.

Justice Palmer held that Forest & Bird had competently and responsibly advanced legitimate arguments in the public interest, and that he would be reluctant to award costs against the organisation.
 
Sally Gepp said the ramifications of this decision and any future legal decisions arising from this, need to be carefully considered.