Sally Gepp and Vaughan Cooper: Battleground of protected land

The site of the proposed Ruataniwha Dam.

From the outset, the Hawke's Bay Regional Investment Company has known that to build the Ruataniwha Dam it needs to destroy 22 hectares of the Ruahine Forest Park.

It has known that this land is nationally significant because of its rarity and quality -- it includes intact wetlands, braided riverbed and habitat for endangered species like long-tail bats and red mistletoe. Its advisers will have told it that as this land is deemed to be in the specially protected category of "conservation park", there is no provision in the Conservation Act for this land to be sold or even swapped.

Commercial activities can operate on conservation land if they obtain a concession from DOC - these are routinely granted for activities from guided treks to telecommunication facilities. But there are strict rules in the Conservation Act to make sure these activities are only allowed where they are consistent with protecting the conservation land.

Back in June 2013, HBRIC applied for a concession for the dam. The DOC assessment recommended that the application should be declined. It said that the effects of flooding the conservation land couldn't be avoided, remedied or mitigated in any way, the land could no longer be managed to protect the natural resources of the Ruahine Forest Park, and that due to the permanent damage to the land and its very high ecological values, granting the concession would be inconsistent with:

* The purpose for which the land is held;

* The terms of the Conservation Act; and

* The local Conservation Management Strategy.

The application wasn't declined; it was put on hold (and has remained on hold ever since).

At that stage, records show that DOC and HBRIC began discussing the option of exchanging the conservation park for part of Smedley Station. Because the Conservation Act doesn't allow conservation parks to be exchanged, this would involve first revoking the land's specially protected status. The parties seem to have envisaged this as a rubber-stamping exercise. No-one seems to have considered whether there was a proper conservation purpose for the revocation.

When the Conservation Act was amended to provide for land swaps in 1990, the swap rule was written in a way that would have allowed any conservation land to be exchanged. This was strongly opposed, and the provision was changed so that only stewardship land could be exchanged. The will of Parliament was that land swaps should be limited to stewardship land.

If conservation land is of low value - for example, if it has been included in a conservation park due to poor mapping, and is actually pasture - revocation of its status might be entirely appropriate. There would be a valid conservation purpose for taking that action.

However, if the conservation land is nationally significant, as is the case with the 22 hectares of Ruahine Forest Park that HBRIC wishes to flood, there is no valid conservation purpose, and the revocation is unlawful.

The Department of Conservation has not yet released its decision on the revocation. Forest & Bird has said that it believes a decision to revoke would be unlawful, and that it is considering a legal challenge given the significant precedent this decision would set.

Forest & Bird says that it has been clear from the outset that this project cannot proceed in this location.

It is not clear whether HBRIC made clear to its owner the Hawke's Bay Regional Council the extreme risk of trying to get approval from DOC that is not provided for under the Conservation Act.

HBRIC chair Dr Andy Pearce has said that HBRIC has no reason to think there's any basis for a legal challenge, but that parties might attempt one just to throw another delay into the process (Hawke's Bay Today, 29/7/15).

Any legal challenge by Forest & Bird would not be to delay the project but to ensure that when land is set aside as specially protected under the Conservation Act, it cannot be traded away in the interests of smoothing the way for development proposals.

* Sally Gepp is society solicitor and Vaughan Cooper chairman of Hastings-Havelock Branch, Royal NZ Forest and Bird Protection Society Incorporated.

* Business and civic leaders, organisers, experts in their field and interest groups can contribute opinions. The views expressed here are not the newspaper's. Email: editor@hbtoday.co.nz.