Comment: I have spent more than two decades working with the Conservation Act from multiple perspectives: as a tramper and skier, as a Department of Conservation planner, in advocacy for Fish and Game and Federated Farmers, through Federated Mountain Clubs and the Backcountry Trust, and now as an independent planning consultant.
That experience does not make me right. It does, however, mean I have seen the law in practice rather than in theory.
After over two decades as a planning practitioner, I’m wondering what the Conservation Amendment Bill fuss is about. I’m wondering how a relatively small set of changes, most of which are procedural, and none of which alter the intent or practice of the Act in the last two decades, have suddenly been seen as the gravest threat to conservation land in 40 years, in the words of at least one non-governmental organisation.
This does not mean the concerns are imaginary. Some provisions may well require amendment, particularly around disposal criteria, public access, and the concentration of decision-making power within the Department of Conservation, but I am concerned by a gap between narrative and legal and policy reality.
The vast majority of the New Zealand public do not work with the Conservation Act in practice. It isn’t pretty. It won’t make Instagram, Potton & Burton will not publish it as a coffee table book, my daughter tells me that I am boring, but I still think conservation planning matters, and is a distinct practice.
Section 6(e) has always set a hierarchy, currently to foster the use of natural and historic resources for recreation, and to allow their use for tourism, where they are not inconsistent with conservation. The settings for recreation are not changing. The change is to replace ‘tourism’ with economic opportunities, and to enable it to the greatest extent under the Act, and other Acts. In practice, “tourism” was often interpreted by the department as “development”, because there was no category under which to place the myriad of other commercial enterprises that operate on public conservation land. Nothing else in the functions of the department has changed.
The Department of Conservation routinely processes and approves concessions for mining, grazing, beekeeping, filming, a plethora of private and commercial structures, cafes, sporting events, gravel extraction, hydro-electric power, etc. None of these are “tourism”, but yet they got approved. The bill simply updates the department’s legal scope in respect of how it has been practising for many years. This seems to have come as a surprise to many.
On the vocal issue of the bill enabling disposals and swaps of public conservation land, it will come as a substantial surprise to many that the Conservation Act does not prevent disposals or swaps. Section 16 of the current Act just says that no conservation area or interest in a conservation area shall be disposed of except in accordance with this Act. This is interesting wording, especially in the absence of any ‘protect in perpetuity’ clauses or functions that other acts contain, such as the Reserves Act, National Parks Act, Marine Reserves Act, and others. The Act may have anticipated a future process for disposal and exchange.
The Act currently contains a process for the exchange and disposal of stewardship land. This has rarely been used, despite stewardship land making up nearly 60 percent of the conservation estate, and often being accused of being low value (a substantial amount of it is high value).
The bill puts in place a process for disposal of all land held under the Conservation Act, and some types of land under the Reserves Act and Wildlife Acts. It provides a detailed public process for land exchange and disposal in more detail than the current Act, noting that past attempts to dispose of land have required convoluted processes, with substantial legal opposition. While the tests for land exchange and disposal may not be sufficient, at least the bill provides a framework for the first time to insert them. For instance, the department has for the first time a substantial list of matters it must consider in any exchange or disposal. This includes public access.
The process for exchange and disposal, while not perfect, is substantially improved on the current lack of process at all. The Schedule 5 exclusions from disposal may need additions, such as the Coromandel Forest Park, and public access needs strengthening, but there is now a framework for this, and future governments, to add these matters. The Act always anticipated a framework for exchange and disposal, it was just never written.
There is rhetoric that somehow the conservation boards and New Zealand Conservation Authority have had their role reduced. Apart from the sign-off of national park management plans, the boards and Conservation Authority are advisory only. They have no budgets independent of staff, no staff, no independent powers of investigation. They provide a legal fiction of accountability, a sense of community involvement on the easy stuff, but when things get tough, the boards and Conservation Authority have zero power to rein in the department.
This isn’t the Minister of Conservation or a political direction either, on many matters, the department has statutory independence from its minister. The powers of sign-off on national park plans have been removed, because these have been replaced with area plans.
That is the only change. Apart from this the Conservation Authority and boards have always been advisory only.
Perhaps this is the issue. The Amendment Bill, an overdue procedural update albeit with notable warts, has exposed the ‘conservation idyll’, the idea that there is stronger protection over much of our conservation land than there is in legal reality, and critically, that there is a strong, and accountable regulator in the Department of Conservation overseeing it.
The department has huge and substantial powers, and these increase a bit with this bill. The plethora of plans and strategies that acted as a constraint on the department, which depending on perspective was either a good thing or bad thing, but was still the rules, have been streamlined. This will speed up decision-making, but herein lies the fatal flaw, which has not been created by the bill.
If the boards and Conservation Authority never had any power in practice to oversee the department, and rein them in legally if they misbehave, then who does? The answer is no one, short of the courts. Non-government organisations are good at applying pressure, the media can expose matters, but unlike most other government departments with this degree of power, there is no independent legal oversight on the department.
I have encountered a recurring view across many stakeholder groups that the quality of conservation outcomes depends primarily on who occupies key leadership positions within the department. That is understandable, but it is also a fragile basis for governance. Institutions should not depend on the wisdom or goodwill of particular individuals. The land doesn’t care who is sitting in Conservation House.
Species need consistent long-term management settings, volunteers looking after huts and tracks need a department that doesn’t run hot and cold on them, farmers extensively grazing on conservation land need consistent treatment. Rangers want a career path with up-skilling, opportunities, and guidance. The public want certainty their lands are being looked after and that if the Department of Conservation fails, that there is some form of independent regulator.
And that, I suspect, is at the heart of the current panic about the bill. The department’s almost absolute powers without checks and balances have been exposed, but yet curiously, in a country supposedly committed to the rule of law and policy, no one discusses the concept of an inspector-general of conservation, with legal, investigative, and review powers. An inspector-general could investigate complaints, review departmental decisions, audit legal compliance, initiate inquiries into systemic issues, and report directly to Parliament rather than the department. Comparable oversight arrangements already exist in other areas of public administration.
Somehow, it is okay to leave the most precious parts of New Zealand, and a substantial part of our economy, to the whims of the department or volunteers and overworked staff at NGOs.
Conservation is of constitutional significance to New Zealand, and perhaps the honest discussion is why almost everyone thinks this arrangement is acceptable, and what that might say about us as a people?
Whether one supports or opposes the bill, it has performed one valuable service: it has exposed how much of New Zealand’s conservation governance depends on trust in the Department of Conservation rather than independent oversight.
