Forest and Bird decision
Forest and Bird decision
Thursday 23 November, 2017
Background
The proposed Ruataniwha Dam in Central Hawke’s Bay has been a controversial project from day one. The proposal involved the damming of the Makaroro River for water storage purposes and required the inundation of approximately 22 hectares of land within the Ruahine Forest Park.
The Ruahine Forest Park is subject to a special classification as “conservation park” and the revocation of such status is a decision of the Minister of Conservation (“Minister”) under the Conservation Act (“Act”).
The removal of the special classification would allow the land to be exchanged with other land provided by Hawke’s Bay Regional Investment Co Ltd (“HBRIC”), the investment arm of the Hawke’s Bay Regional Council (“Council”).
In September 2015, following a public consultation process, the Director-General of Conservation (acting under delegation from the Minister) decided to revoke the conservation park status of the subject land and to authorise the proposed exchange under the Act.
Forest & Bird applied for judicial review of the decision of the Director-General in the High Court, where the Court considered that the decision was lawful. Forest & Bird then appealed to the Court of Appeal, where a 2-1 majority allowed the appeal. HBRIC then sought to overturn this decision in the Supreme Court.
The final Supreme Court decision follows a lengthy resource management process where a Board of Inquiry, followed by a number of High Court decisions, allowed the project to proceed subject to a number of controversial measures.
Decision
The Supreme Court, in dismissing the appeal by HBRIC against the decision of the Court of Appeal, confirmed that the decision by the Director-General of Conservation to revoke the conservation status of the 22 hectares of land within the Ruahine Forest Park was unlawful.
A 3-2 majority of the Supreme Court held that section 18(7) of the Act permits the Minister of Conservation to revoke the protected status of conservation land only where intrinsic conservation values no longer warrant protection of such land.
The decision was unlawful as the Director-General’s decision was based on the view that there was net benefit to conservation values to be obtained from the proposed exchange of the Ruahine Forest Park land with other land.
The majority also considered that the Director-General erred by not taking into consideration relevant policy documents when making the determination to revoke the conservation land status.
The minority in the Supreme Court considered that the wording of section 18(7) was not limited to a consideration of intrinsic conservation values only. They also disagreed with the majority that the policy statements were relevant, instead considering that such documents provided a framework for review processes under the Act rather than of application to specific one-off proposals such as the exchange.
Consequences
The obvious consequence of the decision is that the Ruataniwha Dam project is unlikely to proceed, especially in light of the recent change in government (with the Conservation portfolio heading to the Green Party) and opposition from a majority of councillors on the Council to compulsory acquire the land for the project.
Although the decision relates to the exercise of the exchange of land under the Act, the decision is a timely reminder for consent authorities and other parties exercising statutory decision making powers to be fully aware of all relevant factors when exercising such powers.
It is understood that the Council has expended approximately $20m in planning for the Ruataniwha Dam project (https://www.stuff.co.nz/business/farming/94665288/councillors-say-ruataniwha-dam-project-dead-after-court-decision). If that is the case it is surprising that HBRIC, as project proponent, had not first secured viable property rights over all the land required for the Ruataniwha Dam project, at least on a conditional basis, before incurring costs in a lengthy resource management process.
Please contact Andrew Orme if you want to learn more about the issues discussed in this article.