Hawke's Bay Regional Investment Company Ltd v Royal Forest and Bird Protection Society of New Zealand Inc
[2017] NZSC 106
•6 July 2017
| IN THE SUPREME COURT OF NEW ZEALAND |
| SC 106/2016 [2017] NZSC 106 |
| BETWEEN | HAWKEʼS BAY REGIONAL INVESTMENT COMPANY LIMITED |
| AND | ROYAL FOREST AND BIRD PROTECTION SOCIETY OF NEW ZEALAND INCORPORATED MINISTER OF CONSERVATION |
| SC 107/2016 | |
| BETWEEN | MINISTER OF CONSERVATION |
| AND | ROYAL FOREST AND BIRD PROTECTION SOCIETY OF NEW ZEALAND INCORPORATED HAWKEʼS BAY REGIONAL INVESTMENT COMPANY LIMITED |
| Hearing: | 27 and 28 February 2017 |
Court: | Elias CJ, William Young, Glazebrook, Arnold and OʼRegan JJ |
Counsel: | F M R Cooke QC and M J E Williams for Appellant SC 106/2016 and Second Respondent SC 107/2016 |
Judgment: | 6 July 2017 |
JUDGMENT OF THE COURT
A The appeals are dismissed.
BCosts are reserved. If an order for costs is sought, the parties may file written submissions within one month of the date of judgment.
____________________________________________________________________
REASONS
| Elias CJ, Glazebrook and Arnold JJ | [1] |
| William Young and O’Regan JJ | [166] |
ELIAS CJ, GLAZEBROOK AND ARNOLD JJ
(Given by Elias CJ)
Table of Contents
| Para No | |
| Introduction | [1] |
| Background | [5] |
| The Society’s application for judicial review | [32] |
| Scheme of the legislation | [36] |
| (a) Purpose | [36] |
| (b) Protected land and stewardship land | [38] |
| (c) Transitional arrangements for former State forest land | [45] |
| (d) Administration and management of conservation park and conservation areas | [48] |
| (e) Marginal strips | [51] |
| Statutory planning instruments adopted under ss 17B and 17D | [53] |
| (a) The Conservation General Policy | [54] |
| (b) The Hawke’s Bay Conservation Management Strategy | [61] |
| The decision in the High Court | [63] |
| The Court of Appeal decision | [71] |
| The appeal to this Court | [83] |
| Section 7(1A) | [87] |
| Section 61(9) | [94] |
| Stewardship land and conservation park | [97] |
| Recreation | [99] |
| Revocation as park management? | [103] |
| Does revocation depend on values intrinsic to the land? | [109] |
| Was the revocation decision wrongly driven by the exchange? | [118] |
| Effect of the statutory planning instruments | [128] |
| (a) Was the Minister bound by the planning instruments? | [129] |
| (b) Relevance of the planning instruments | [136] |
| Marginal strips | [150] |
| Conclusion | [162] |
Introduction
The Ruahine Forest Park in Hawke’s Bay is former State forest park which is deemed under the Conservation Act 1987 to be held by the Minister of Conservation for conservation purposes as conservation park, a category of specially protected land under the Act. Land held by the Minister for conservation purposes which does not have additional special protection is stewardship land and may be disposed of by the Minister or exchanged for other land under the provisions of the Act. Land with additional protection, such as land with the status of conservation park, may not however be exchanged or otherwise disposed of by the Minister while the protected status continues.
The Royal Forest and Bird Protection Society of New Zealand Incorporated challenged a decision of the Director‑General of Conservation, acting under the delegated authority of the Minister, to revoke the special protection of conservation park status for 22 hectares of the Ruahine Forest Park. The revocation decision was made by the Director‑General so that the 22 hectares could be exchanged for other land to be provided by the Hawke’s Bay Regional Investment Company Limited.[1] The Company plans to build a dam on the Makaroro River for water storage purposes which will inundate the 22 hectares. The decision of the Director‑General to revoke the special protection of the land was upheld in the High Court[2] but was set aside by majority decision in the Court of Appeal.[3] The Minister and the Company appeal to this Court.
[1]Often referred to in documents as “HBRIC”.
[2]Royal Forest and Bird Protection Society of New Zealand Inc v Minister of Conservation [2016] NZHC 220, (2016) 19 ELRNZ 370 (Palmer J).
[3]Royal Forest and Bird Protection Society of New Zealand Inc v Minister of Conservation [2016] NZCA 411, [2016] 3 NZLR 828 (Harrison and Winkelmann JJ; Ellen France P dissenting).
The Director-General’s revocation decision was based on the relative conservation values of the 22 hectares of forest park and the conservation values obtained in the land for which it is to be exchanged. The Society has argued that this relative assessment between the two blocks of land to be exchanged is inconsistent with the scheme of the Act. The Act is said to have required focus on the intrinsic conservation values of the 22 hectares in determining whether its protected status was appropriate rather than measuring the net gain to the conservation estate in the exchange.
There are two linked principal issues on the appeal: whether the scheme of the Act permits a statutory power to revoke additional protection for conservation land to be exercised for the purpose of allowing it to be exchanged as stewardship land; and whether revocation decisions can be taken on the basis on which exchanges of stewardship land may be made (being that the exchange will enhance the conservation values of land managed by the Department and promote the purposes of the Act). Subsidiary issues are whether the decisions to revoke the additional protected status of the land so that it can be exchanged for private land must be in accordance with the Conservation General Policy and the Hawke’s Bay Conservation Management Strategy (statutory planning instruments adopted under the legislation) and whether the exchange triggers the creation of marginal strips along rivers and streams in the former forest park land which is exchanged.
Background
Twenty-two hectares of the Ruahine Forest Park will be inundated in a reservoir for water storage purposes to be created behind the proposed Ruataniwha Dam across the Makaroro River, for which the Company has obtained statutory resource consents. The land is in two separate riparian blocks. One of eight hectares extends along the left bank of the Makaroro River. The second block of 14 hectares runs along Dutch Creek, a tributary of the Makaroro River. It is accepted by the Department that the 22 hectares contain areas of “high value”. Some are ecologically significant.[4]
[4]The conservation values of the land, as identified in the scientific reports provided to the Director‑General, are more fully described below at [15]–[19]. See also at [27]–[28].
The Company approached the Minister of Conservation for a concession in the form of an easement to facilitate the use of the land in the water storage scheme.[5] Advice provided to the Department concerning ecological values and effects of the proposed easement described the entire 22 hectares as “threatened”, and areas within it as “acutely threatened” or “chronically threatened”. Of concern in terms of the national priorities for biodiversity protection[6] were the oxbow wetland on the true right of Dutch Creek, and a small portion of land on the true left of the Makaroro River adjacent to and including braided river gravels, a nationally rare ecosystem. The land also contains habitat for a nationally vulnerable species (the North Island long‑tailed bat) and declining species (North Island fernbird and red mistletoe). The ecological advice concluded that “[t]here is no doubt, therefore, that the areas of indigenous habitat which are subject to the proposal contain significant ecological values within a national context”.
[5]Pursuant to the provisions in Part 3B of the Conservation Act 1987.
[6]The Statement of National Priorities for Protecting Rare and Threatened Biodiversity on Private Land (Ministry for the Environment, ME 805, April 2007) is a document issued by the Minister of Conservation and Minister for the Environment in 2007, the aim of which is to provide a system for the identification and classification of the most vulnerable ecosystems and habitat on private land.
It was accepted by the report writer of a Departmental draft report on the proposed easement that the flooding of the land would result in the loss of all ecological values present. The draft report also identified that there were likely to be secondary effects to the remaining forest because of the raising of the water table and that the recreational use of the land would be affected. It noted that some of the land “appears to be nationally significant” and that “the values of the Land are such that the application [for a concession] is inconsistent with the terms of the Conservation Act 1987”.
Following this draft report, the concession application appears to have been parked. Instead, the Department and the Company looked to a solution by which the land would be taken out of the forest park altogether. The Company eventually proposed to the Minister of Conservation that the 22 hectares of forest park be exchanged for a privately owned block of 147 hectares, the Smedley land, adjacent to the Ruahine Forest Park and currently being grazed.[7] Under the exchange the 22 hectares proposed to be inundated as part of the Ruataniwha Water Storage Scheme would be transferred into the ownership of the Company and no longer held by the Department for conservation purposes. Subject to questions as to whether a marginal strip would be reserved to the Crown in the exchange (discussed below at [150]–[161]), it seems that the use of the land for water storage would not then require a concession under the Conservation Act.
[7]As noted below at [29], n 11, the original proposal was for 147 hectares but the Director‑General’s approval of the revocation and proposed exchange was ultimately subject to the Company adding 23.4 hectares to the Smedley land so that the Department would receive 170 hectares of land in total.
The Company has entered into a conditional agreement to purchase the Smedley land in order to effect the proposed exchange. The exchange can be effected under s 16A of the Act only if the protected conservation park status of the land is first revoked under s 18(7) so that the status of the land changes to conservation land held by the Minister as stewardship land, rather than land with the additional protected status of conservation park.
Because the land is forest park land subject to transitional provisions of the Act (as is explained below at [45]–[47]), the sequence needed to effect the exchange required:
(a)first, that the land be declared to be held for conservation purposes under s 7(1) or (1A) (bringing its transitional status to an end);
(b)secondly, that the conservation park status (which continued to apply under s 61(3) on a declaration that the land be held for conservation purposes) be itself lifted by revocation of conservation park status under the power conferred on the Minister in s 18(7) of the Act;
(c)thirdly, that the Minister exercise the power under s 16A to exchange the stewardship land (resulting from revocation of conservation park status) for the Smedley land; and
(d)finally, declaration under s 16A(3) that the Smedley land obtained be held as conservation park.
The Department considered whether to bring the transitional status of the land to an end by proceeding under s 7(1A) of the Act, which it considered (erroneously, as we think[8]) was a stand-alone alternative to s 7(1) and one that did not require public notification. Because the area in question was accepted to have high conservation values and there was a high level of public interest in changing the protected status of the conservation park, it decided to use the s 7(1) procedure for the revocation of conservation park status, requiring public notice.
[8]See below at [87]–[93].
The powers of the Minister under s 7(1) (to declare land to be held for conservation purposes) and 7(1A) (to declare former State forest land to be held for conservation purposes) and under s 16A (to exchange stewardship land) are the subject of general delegations made under the Act. The power to revoke conservation park status under s 18(7) was not the subject of general delegation. Instead the Minister on 1 December 2014 delegated to the Director‑General of Conservation, with power to sub‑delegate, the power under s 18(7) to:
·form the intention to revoke conservation park status; and
·make the revocation decision.
The Minister subsequently revoked the power to sub‑delegate, and required the power to revoke the conservation park status to be exercised by the Director‑General.[9]
[9]Though the initial view that a land exchange should be progressed had already been formed by the Deputy Director‑General: Royal Forest and Bird Protection Society of New Zealand Inc v Minister of Conservation [2016] NZHC 220, (2016) 19 ELRNZ 370 at [37], n 19.
The delegation under which the revocation decision was taken is therefore one entered into in February 2015 by the Minister. It authorised the Director‑General of Conservation to “revoke conservation park status by Gazette notice”, which was defined to apply:
… in the circumstances of part of the Ruahine Conservation Park being required for a land exchange associated with the Ruataniwha Water Storage Scheme.
As appears from the terms of the delegation, the delegated power to revoke the conservation park status of the land under s 18(7) was specifically limited to the purpose of the land exchange associated with the Ruataniwha Water Storage Scheme.[10]
[10]It was not argued that facilitation of the Ruataniwha Water Storage Scheme was itself an improper purpose in exercising powers under the Conservation Act in application of the principles discussed in Fiordland Venison Ltd v Minister of Agriculture and Fisheries [1978] 2 NZLR 341 (CA). Nor was it contended that the restriction in the delegation of the revocation decision to facilitation of the Ruataniwha Water Storage Scheme wrongly fettered the statutory power of revocation. We express no views on these possible additional arguments.
The proposal to revoke protection for the 22 hectares of forest park in order to exchange it for the Smedley land was publicly notified and attracted a number of objections, including from the Society. The application and objections were considered by a hearing panel which also received additional scientific assessments from the Department relating to the relative conservation values of the two blocks of land (principally by reference to ecological and landscape values).
The material considered by the convenor of the hearing panel, Mr Kemper, included scientific reports of the values to be found in the two blocks of land, including a peer review of one of the reports. All scientific reports focused on the benefits in the exchange. One report writer reached the conclusion that the habitat and species values in the 22 hectares of forest park were “marginally better” than the values in the Smedley land and that not all habitats in the 22 hectares were duplicated in the Smedley land. Riverbed would be lost. He noted that on the other hand “similar forest habitat in the Smedley Block is 5.5 times the size of the area that will be inundated in Ruahine Forest Park, and there will be similar habitats to that which will be lost, to be found elsewhere in Ruahine Forest Park”. It was also thought to be of advantage that the Smedley land was contiguous with conservation areas, whereas eight hectares of the forest park land was an “outlier separated from the main block by a pine plantation”. “Overall management” would therefore be improved by the exchange. It was on this basis that the writer concluded that “the proposed exchange does reflect an enhancement of conservation values from an ecological point of view”. This report was not accepted in full by the hearing convenor who questioned whether it was “sufficiently comprehensive”. The convenor sought a further report as to the values in the relevant parcels of land and how they compared.
The further report obtained and relied on by the hearing convenor compared the relative values of each block. The summary indicates that they were compared for factors such as the existence of “emergent podocarps”, size, underlying geology and “altitudinal range”, complementarity with adjoining conservation areas, assessment of degradation and potential for regeneration (for example once grazing on the Smedley land was stopped), distinctiveness of the wetlands on each block, and habitat for birds, fish, bats, geckos and skinks, and red mistletoe.
In a number of respects the further report indicates that the 22 hectares of forest park land represented ecological or habitat features which were more acutely threatened than comparable features on the Smedley land. That was the case in particular in relation to habitat for fish species and fernbird. While it was acknowledged that there would be possible loss of habitat for seven migratory fish species, the report concluded that the loss of these populations was “not expected to result in a significant increase to their threat of extinction from elsewhere in the catchment”. The Smedley land was however larger and had different underlying geology and altitude range supporting ecosystems “not present in [the] Ruahine Forest Park revocation land”. The oxbow wetland on the 22 hectares of revocation land was significant in terms of national priorities, as were some wetlands on the Smedley land, although they were not considered “distinctive”, as the oxbow wetland was. Potential habitat was considered to be comparable in the two blocks of land. Although red mistletoe was found only in the Dutch Creek parcel, not in the Smedley land, the report indicated that red mistletoe was represented in the Ruahine Forest Park in other locations and that “it is feasible to translocate mistletoe through careful placement of seed on host trees” and therefore the presence of red mistletoe on the 22 hectares was “not considered significant”.
The report concluded that “from an ecological and biological point of view … the proposed exchange offers an enhancement to conservation values” (particularly because the Smedley land is “underpinned by a different geology”) and that the Smedley land was a “worthy addition” to the Ruahine Forest Park. It is clear, however, that the scientific assessment was relatively even and there is no suggestion that the values identified on the 22 hectares were not significant and did not in themselves warrant continued protection in the absence of the exchange. The assessment was that, on balance, there were net gains in the exchange.
The hearing convenor invited comment on the report. Because of objections, particularly as to the report’s treatment of freshwater values and the relevance of future effects, the Department’s science team carried out a further assessment, separately addressing terrestrial, wetlands and streams components, as well as an overall assessment “both with the dam and without it”. The hearing convenor noted that while “a number of the comments made by the objectors have raised valid issues”, the science team “[did] not consider that the issues raised by objectors and the clarifications to the assessments and descriptions of values made in response change[d] the overall … conclusions in the Science Report (i.e. that the exchange would enhance the values of land managed by the Department and would promote the purposes of the Act)”.
The hearing convenor reported to the Director‑General in September 2015 the views that the proposed exchange of land would enhance the conservation values of land managed by the Department and promote the purposes of the Act (the criteria on which exchange of stewardship land is permitted under s 16A of the Act). He was of the opinion that revocation of conservation park status could occur either if the values of the land were “not worthy of Conservation Park status” or (“also”) if the revocation facilitated an exchange “that will benefit the land administered by the Department, and where the tests for an exchange (i.e. enhances the conservation values of land managed by [the Department] and promotes the purposes of the Act) are met”. The hearing convenor agreed with the view expressed by the Department that “[t]he land being offered by exchange has been assessed as containing higher conservation values than the [conservation park] land, so the Minister has been able to form an intention to exchange”. He accepted too that the resources in the conservation park land did not need to be retained for conservation park purposes “if the Minister’s delegate agrees to proceed with the exchange”:
In revoking the land status to enable a land exchange better conservation values are obtained, which can be added to the Ruahine Forest Park.
The hearing convenor’s report recommended that, if the Director‑General decided to progress the exchange of land, he should revoke the conservation park status of the conservation land after first declaring the land to be held for conservation purposes under s 7(1) of the Act.
In addition to the recommendations of the hearing convenor, the Director‑General was also supplied with a Departmental report recommending that he make the series of decisions and as to their sequence. They were that the Director‑General:
(a)declare the land to be held for conservation purposes under s 7(1) of the Act (with the effect under s 61(3) that it would be deemed to be held for the purposes of a conservation park);
(b)agree to revoke the status of the land as conservation park on the basis that he wished “to progress the proposed exchange of the [Ruahine Forest Park] land for the Smedley land”;
(c)authorise the proposed land exchange under s 16A on the basis that the exchange met the statutory test under s 16A and that it was desirable that the Smedley land be acquired by exchange; and
(d)declare that the exchanged Smedley land be held as conservation park.
The summary taken into account by the Director‑General was that “from an ecological and biological point of view”, exchanging the 147 hectare Smedley land for the 22 hectare Ruahine Forest Park revocation land would enhance the conservation values of land managed by the Department. This was the basis on which the Director‑General agreed to the exchange and revocation of the additional protected status of the 22 hectares. He was advised in the following terms:
In conclusion you need to be satisfied that the test for an exchange of land has been made out under s 16A of the Act. The information provided by HBRIC together with the Science report prepared by the Department reach the view that the Smedley land will enhance the conservation values of land managed by the Department and promote the purposes of the Act. If you approve the revocation of the purpose of the [Ruahine Forest Park] land on the basis that you are satisfied that the Smedley land meets the test in s 16A you should, subject to gazettal of your revocation decision under s 18(7) of the Act, proceed [formally] to authorise the exchange and give effect to that authorisation by Gazette Notice.
Elsewhere in the report the advice was given that “[p]rovided you are satisfied that the purpose of the [Ruahine Forest Park] land should be revoked to enable the exchange to be progressed, you may agree to revoke the purpose of the [Ruahine Forest Park] land subject to gazettal of the declaration under s 7(1)”. The application of conservation park status to the Smedley land was also recommended:
In the case of the Smedley land there is sufficient information before you to enable you to conclude that it would be appropriate to classify the land for the purpose of a conservation park and to add it to the Ruahine Forest Park.
The decision of the Director‑General was communicated to the Company by letter of 5 October 2015. The letter records that, although the letter set out the decision, it had to be “read alongside two reports”, both of which were part of the “overall decision”. The two reports were the hearing convenor’s report of 22 September 2015 and the Department’s further report to the Director‑General of 25 September 2015. The decision was subject to the conditions that the Company take title to the Smedley land and that an additional 23.4 hectares be added to the 147 hectares of the Smedley land originally proposed (making up the 170 hectares ultimately the subject of the exchange).
As the terms of the delegation to the Director‑General had indicated and as has been acknowledged throughout the litigation, the revocation of the conservation park status of the land and the exchange of land was for the purpose of the proposed Ruataniwha Water Storage Scheme. The decision is described as being one made “on the proposal by Hawkes Bay Regional Investment Company Limited (HBRIC) to exchange approximately 146 hectares (ha) of private land located within Smedley Station for two parcels of Ruahine Forest Park (RFP) land totalling approximately 22 hectares.” The exchange is described in the decision letter as being:
… for the purposes of the proposed Ruataniwha Water Storage Scheme which involves the placement of a dam over the Makaroro River and the inundation of land behind the dam which includes the [Ruahine Forest Park] land. As the land is currently held by the Public Trust, the exchange has been proposed subject to HBRIC taking title to the 146 ha of private land.
The Director‑General’s decision to authorise the exchange was explained by him to have required “a number of other decisions”:
As the [Ruahine Forest Park] land is currently held as deemed conservation park, progressing the proposed exchange has required me to make a series of decisions. These decisions are to:
(a)Declare the [Ruahine Forest Park] land to be held for “conservation purposes” under Section 7(1) of the Conservation Act 1987 (the Act);
(b)Revoke the status of the [Ruahine Forest Park] land under Section 18(7) of the Act; and
(c)Authorise the proposed land exchange under Section 16A of the Act.
The Director‑General recognised that the forest park land contained “some significant conservation values”:
The Makaroro river parcel, for instance, is located on an alluvial plain that is rare in the landscape and there is an acutely threatened land environment of 3.3ha.
On the other hand, he pointed out that the land had been heavily logged in the past and, although it has black beech and broadleaf forests, “they are not substantial”. The land environment that was acutely threatened was said to have been “reasonably well represented on 92 ha of public conservation land elsewhere in the district”. The Dutch Creek parcel was acknowledged to comprise black beech forest and secondary scrub, but the area of black beech had “lost emergent podocarps to logging”. It did however have “a small but significant oxbow wetland”.
The Smedley land intended for the exchange was described as containing
“2 significant wetlands and an underlying geology that differs from the rest of the Ruahine ranges”:[I]t also supports ecosystems not present on the [Ruahine Forest Park] land. While it, too, has been logged, it has retained scattered emergent podocarps through a black beech forest that is almost 3 times more extensive than that on the [Ruahine Forest Park] land. Even though it is interspersed with 24 ha of pasture I am confident that the proposal to remove that land from grazing will, over time, lead to regeneration.
The Director‑General also accepted and referred to the conclusion of the Department’s science team that “whether the exchange proposal is assessed under a ‘with dam’ (i.e. future state) or ‘without dam’ (i.e. current state) scenario, the Smedley land will enhance the conservation values of land managed by the Department and promote the purposes of the Act”. He took the view that “the values of the Smedley land warrant special protection” and that “it should be held as conservation park” and, desirably, included in the Ruahine Forest Park.
The Director‑General concluded:
In summary I am of the view that the proposed exchange will well and truly meet the Act’s test for exchanges. Moreover I consider that the conditions I am imposing[[11]] together with HBRIC’s offers to undertake conservation work will further promote the purposes of the Act.
As a result, and acting under delegation from the Minister of Conservation, I have decided:
(a)To declare the [Ruahine Forest Park] land to be held for conservation purposes, as this is necessary to enable me to progress the proposed exchange;
(b)To agree, subject to a Gazette notice giving effect to that declaration, to revoke the purpose of the [Ruahine Forest Park] land as a conservation park on the basis that I wish to progress the proposed exchange of the [Ruahine Forest Park] land for the Smedley land;
(c)Subject to a Gazette notice giving effect to my decision to revoke the conservation park status of the [Ruahine Forest Park] land:
(i)To authorise the proposed land exchange under s 16A(1) of the Act on the basis that I am satisfied on the information before me that the proposed exchange will enhance the conservation values of land managed by the Department and promote the purposes of the Act as required by s 16A(2);
(ii)To agree, in accordance with s 16A(3) to hold the Smedley land for the purpose of a conservation park and include it in the Ruahine Forest Park; and
(iii)To give notice of these last two decisions in consequential order by notice in the Gazette after gazettal of the earlier decisions set out above.
[11]The conditions imposed related to the Company taking title to the Smedley land and adding to it an additional 23.4 hectares (which were to incorporate Donovan Gully); undertaking boundary fencing and bearing the costs of survey; and carrying out additional conservation work for whio habitat restoration (including predator control) and wilding pine eradication.
The Director‑General also described the process that led to his decisions in his affidavit evidence in the High Court. In consenting to the revocation of protected status, he said he adopted the Department’s submissions and took into account the application proposing the exchange from the Company, the scientific evidence (described above), the submissions received together with relevant correspondence, and the hearing convenor’s report. He adopted the hearing convenor’s views as to the power to revoke conservation status and in rejecting the objections based on the Conservation General Policy and Hawke’s Bay Conservation Management Strategy. The Director‑General accepted also that it was premature to consider the question of reservation of marginal strips.
With respect to the “scientific information and land values”, the Director‑General confirmed in his affidavit evidence that he had assessed the scientific information “on a before and after the dam scenario”. He took the view that the scientific information covering both the forest park land and the Smedley land was “thorough, reliable and objective and the peer reviews of it assisted in this”. As a result he was left in “no doubt” that what was proposed would “enhance the conservation values of land managed by the Department and promote the purposes of the Act”. This conclusion was also said to be supported by the fact that, while the Makaroro and Dutch Creek parcels of the existing forest park were not currently used for outdoor recreation, acquisition of the Smedley land would provide access not only to that block but further access to the Gwavas Conservation Area.
The Society’s application for judicial review
The Society sought judicial review in the High Court of the decision of the Director‑General revoking the conservation park status of the 22 hectares. In its first three overlapping causes of action the Society sought orders setting aside the decisions to revoke the protected status of the 22 hectares and the consequential decision to exchange the land on the basis that the revocation decision was:
(a)inconsistent with the statutory scheme (and in particular its distinction between protected land and stewardship land);
(b)exercised for an improper purpose, “being to facilitate a proposed land exchange” when the Act prevented exchange except of stewardship land;
(c)made after taking into account the irrelevant considerations of a proposed land exchange and “net benefit” to the conservation estate.
In a further cause of action the Society claimed that the Director‑General had acted unlawfully in the revocation decision in failing to act in accordance with or take into account relevant provisions of the Hawke’s Bay Conservation Management Strategy and the Conservation General Policy, statutory planning instruments it said the Minister and her delegate were obliged to observe or take into account under the Act. An additional cause of action was that the Director‑General had erred in law in failing to address the marginal strips that would be created by disposal of the land by way of land exchange in respect of rivers and streams on the 22 hectares with average widths of three metres or more. Since the marginal strips created through the disposition by exchange would be inundated by the reservoir proposed, the Society claimed that a concession was required under the Act or, alternatively, exchange of the marginal strips themselves. It was claimed that the Director‑General’s decision was unlawful because it did not address the statutory requirements for marginal strip concessions or exchanges.
The Minister denied the allegations made as to unlawfulness in the decisions taken and said that the requirements under s 16A for exchange of land were properly made out and the purpose of exchange was properly relevant to the revocation decision. She said that an exchange under s 16A is not a disposition of land triggering the reservation of marginal strips and that, in any event, any consideration of reservation of marginal strips is premature because it is dependent on survey yet to be carried out for the exchanged land and completion of the exchange.
These matters of pleading continued to frame the arguments in the judicial review and on appeal to the Court of Appeal and to this Court. Before considering them and describing the course of the litigation, it is however necessary to set out the scheme of the legislation.
Scheme of the legislation
(a) Purpose
The Conservation Act is “[a]n Act to promote the conservation of New Zealand’s natural and historic resources, and for that purpose to establish a Department of Conservation”.[12] Land held under the Act is held “for conservation purposes”, as “conservation area”.[13] “Conservation” is defined to mean the “preservation and protection of natural and historic resources for the purpose of maintaining their intrinsic values, providing for their appreciation and recreational enjoyment by the public, and safeguarding the options of future generations”.[14] “Preservation” is defined, in relation to a resource, as “the maintenance, so far as is practicable, of its intrinsic values”. And “protection”, in relation to a resource, means “its maintenance, so far as is practicable, in its current state; but includes … its restoration, … augmentation, enhancement, or expansion”.
[12]Conservation Act, long title.
[13]Section 2(1), definition of “conservation area” and s 7.
[14]Section 2(1).
Section 7 empowers the Minister to declare that land is held for “conservation purposes”:
7 Land may be acquired and held for conservation purposes
(1)The Minister, and the Minister responsible for an agency or department of State that has control of any land, may jointly, by notice in the Gazette describing it, declare that the land is held for conservation purposes; and, subject to this Act, it shall thereafter be so held.
(1A)Notwithstanding subsection (1), in the case of any land to which section 61 or section 62 applies, the Minister may, by notice in the Gazette describing it, declare that the land is held for conservation purposes; and, subject to this Act, it shall thereafter be so held.
(1B)In the case of land that is foreshore within the common marine and coastal area, the Minister may declare, by notice in the Gazette describing the land, that the land is held for conservation purposes.
(2)The Minister may, by agreement, acquire any interest in land for conservation purposes; and, subject to this Act, it shall thereafter be held for those purposes.
(3)Nothing in subsections (1) and (2) applies in respect of land that is Crown forest land within the meaning of section 2 of the Crown Forest Assets Act 1989.
(4)For the purposes of subsection (1), the Minister of Forestry shall be deemed to be the Minister responsible for a department of State that has control of State forest land that is not Crown forest land within the meaning of section 2 of the Crown Forest Assets Act 1989.
(b) Protected land and stewardship land
Land held for conservation purposes may be held either as a “specially protected”[15] conservation area (governed by the provisions of Part 4) or as “stewardship area” (governed by Part 5). Special protection may be conferred by the Minister under s 18 of the Act or s 18 protection may be deemed by the statute to apply, as it does under the provisions relating to former State forest park, described below at [45]–[47]. Under s 18(5) land with specific protection must “be managed in a manner consistent with the purpose or purposes concerned”.
[15]Part 4 is under the heading “Specially protected areas”.
Section 18 is the key provision in issue on the appeal. It contains in subs (7) the mechanism by which protected status can be revoked, turning formerly protected land into stewardship land which may be exchanged under s 16A or disposed of under s 26:
18Minister may confer additional specific protection or preservation requirements
(1)Subject to subsections (2) to (4), the Minister may, by notice in the Gazette describing the land concerned, declare any land or interest in land, held under this Act for conservation purposes to be held for the purpose of a conservation park, an ecological area, for any other specified purpose or purposes, or for 2 or more of those purposes; and, subject to this Act, it shall thereafter so be held.
(2)The Minister shall give public notice of intention to give a notice under subsection (1); and section 49 shall apply accordingly.
...
(5)Every area held under this Act for 1 or more of the purposes described in subsection (1) shall be managed in a manner consistent with the purpose or purposes concerned.
(6)Nothing in sections 19 to 24 limits the generality of subsection (5).
(7)Subject to subsection (8), the Minister may, by notice in the Gazette, vary or revoke the purpose, or all or any of the purposes, for which any land or interest held under subsection (1) is held; and it shall thereafter be held accordingly.
(8)Before varying or revoking any purpose under subsection (7), the Minister shall give public notice of intention to do so; and section 49 shall apply accordingly.[[16]]
[16]Section 49, which is not reproduced in these reasons, provides for public notice and rights of objection.
“Stewardship area”, by contrast, is negatively defined as conservation area that is not land held for one of the purposes described in s 18(1) (that is, as a specially protected area), and that is not a marginal strip or watercourse area.[17] Under s 25, stewardship area must be managed to protect its natural and historic resources.
[17]Section 2(1), definition of “stewardship area”.
The principal difference between stewardship areas and specially protected areas is as to disposition of the land. Under s 16(1) (and subject to the Public Works Act 1981) “no conservation area or interest in a conservation area shall be disposed of except in accordance with this Act”. While ss 16A and 26 provide powers of exchange or other disposition of stewardship land, no equivalent powers are provided in the Act for exchange or other disposition of specially protected areas.[18]
[18]Although there is a separate regime for disposal or exchange of marginal strips: s 24E.
Section 18(7) allows the Minister to “vary or revoke the purpose, or all or any of the purposes, for which any land or interest held under subsection (1) is held”. Any such change in status under s 18(7) is made after public notification and the process prescribed by s 49 of the Act.[19] Revocation of all special protection has the effect that the land remains held for conservation purposes, but is stewardship land and may be disposed of or exchanged in accordance with the provisions of the Act, whereas protected land cannot be disposed of or exchanged.
[19]Section 18(8).
Sale or disposition of stewardship land (other than by exchange under s 16A) cannot be undertaken without public notice and rights of objection under s 49.[20] Even then, if the stewardship land to be disposed of is adjacent to protected conservation area, the Minister may not sell or dispose of it “unless satisfied that its retention and continued management as a stewardship area would not materially enhance the conservation or recreational values of the adjacent conservation area or land or, in the case of any marginal strip, of the adjacent water, or public access to it”.[21]
[20]Section 26(3).
[21]Section 26(2). It may be noted that the Director‑General did not consider that marginal strips would be required. The Director‑General did however take into account the enhancement of adjacent conservation areas in making the s 16A decision because such enhancement was contextually relevant in assessing the net benefit in the exchange.
Under s 16A exchange is permitted if the Minister is “satisfied, after consultation with the local Conservation Board, that the exchange will enhance the conservation values of land managed by the Department and promote the purposes of this Act”. The full text of s 16A is:
16A Exchanges of stewardship areas
(1)Subject to subsections (2) and (3), the Minister may, by notice in the Gazette, authorise the exchange of any stewardship area or any part of any stewardship area for any other land.
(2)The Minister shall not authorise any such exchange unless the Minister is satisfied, after consultation with the local Conservation Board, that the exchange will enhance the conservation values of land managed by the Department and promote the purposes of this Act.
(3)All land acquired by the Crown under this section shall be held for such conservation purposes as the Minister may specify in respect of that land by notice in the Gazette.
(4)The Minister may authorise the payment or receipt by the Crown of money by way of equality of exchange in any case under this section; and all money so received shall be paid into the Department of Conservation Grants and Gifts Trust Account, and shall be applied, without further appropriation than this section, for the acquisition of land under this Act or the Reserves Act 1977 or the National Parks Act 1980.
(5)The Minister or the Director‑General may, on behalf of the Crown, do all such things as may be necessary to effect any exchange authorised under this section.
(6)Upon the transfer of any stewardship area or any part of any stewardship area under this section, that land shall cease to be subject to this Act.
(7)Nothing in section 26 or section 49 shall apply to the exchange of land under this section.
(7A)Nothing in section 40 of the Public Works Act 1981 applies to the exchange of land under this section.
(8)District Land Registrars are hereby authorised and directed to make such entries in registers and do all such other things as may be necessary to give effect to exchanges authorised under this section.
(c) Transitional arrangements for former State forest land
In the restructuring of the land-holdings of the Crown under the Conservation Act and the State‑Owned Enterprises Act 1986, former State forest land which was existing forest park and had not been identified for possible transfer to a State enterprise was held by the Department of Conservation for “conservation purposes” under the transitional arrangements in s 61 of the Conservation Act:[22]
[22]The alternative under s 61(2A) (introduced by s 44(2) of the Crown Forest Assets Act 1989) did not apply to this land because it was never identified for allocation to New Zealand Forestry Corporation Limited.
61Certain former State forest land to become protected area on commencement of Act
(1)Any land that, immediately before the commencement of this Act, was a forest sanctuary shall be deemed to have been declared to be held for the purpose of a sanctuary area by a notice under section 18(1) published in the Gazette on that commencement.
(2)Any land that, immediately before the commencement of this Act,—
(a)was a forest park; and
(b)was not shown on any plan lodged in the office of the Chief Surveyor for the land district in which it is situated (being a plan certified as correct for the purposes of section 24 of the State-Owned Enterprises Act 1986 by the Chief Surveyor) as being allocated for possible transfer to a State enterprise,—
shall, until it—
(c) is declared to be held for conservation purposes under section 7(1); or
(d) is vested in a State enterprise under the said section 24,—
be deemed to be a conservation park.
…
(3)When any land to which subsection (2) applies is declared to be held for conservation purposes under section 7(1), it shall be deemed to have been declared to be held for the purpose of a conservation park by a notice in the Gazette under section 18(1).
(4)[Deeming continuation of wilderness area status.]
(5)[Providing for deemed wilderness area status on s 7 declaration that the land is conservation area.]
(6)[Deeming continuation of ecological area status.]
(7)[Providing for deemed ecological area status on s 7 declaration that the land is conservation area.]
(6A)[Exempting land allocated to New Zealand Forestry Corporation Limited immediately before enactment of the Crown Forest Assets Act 1989.]
(6B)[Correcting earlier declaration under s 7(1) for land to which subs (6A) applies.]
(7)[Providing an equivalent deeming to subs (3) for ecological area on declaration under s 7(1).]
(8)[Concerning management of ecological areas to protect the values for which they were originally dedicated under the Forests Act 1949 as ecological area.]
(9)Until it is—
(a)declared to be held for conservation purposes under section 7(1); or
(b)vested in a State enterprise under section 24 of the State‑Owned Enterprises Act 1986,—
all land that is deemed by this section to be a conservation park, a wilderness area, or an ecological area shall be deemed to be held under this Act for conservation purposes; but neither it nor any interest in it shall be disposed of except by vesting as aforesaid.
(10) Nothing in subsection (9) restricts or prevents the granting under this Act of a concession over any land.
Former State forest park is not stewardship area. It is deemed by s 61(2) to have, in addition to the status of land held for “conservation purposes”, the additional protected status of “conservation park”. The deeming transitional provision means that it is unnecessary for additional protection to be provided by notice published in the Gazette under s 18(1), as is required for conservation land not subject to the transitional arrangements in s 61. Although the deemed protected status under s 61(2) ends if the land is vested by Order in Council in a State enterprise, the land continues to have the additional protected status of conservation park under s 61(3) once the option of vesting in a State enterprise is not taken and the land is declared by the Minister to be held for conservation purposes. That is because s 61(3) provides that former State forest park declared to be held for conservation purposes under s 7(1) is “deemed to have been declared to be held for the purpose of a conservation park by a notice in the Gazette under section 18(1)”.
In summary, the effect of the transitional provisions in s 61 is that land which was State forest park on the coming into effect of the Conservation Act is deemed to be conservation park until a decision is taken either to confirm that status by declaration under s 7(1) or 7(1A)[23] that the land is “held for conservation purposes” or by vesting the land in a State enterprise under s 24 of the State-Owned Enterprises Act. During the transitional deemed status, s 61(9) prevents the land being disposed of except by vesting in a State enterprise under s 24 of the State‑Owned Enterprises Act. Once a declaration is made by the Minister that State forest park is “held for conservation purposes”, it is no longer available to be vested in a State enterprise and cannot be disposed of except in accordance with the Conservation Act. It becomes “conservation park” by operation of s 61(3) because it is “deemed to have been declared to be held for the purpose of a conservation park by a notice in the Gazette under section 18(1)”. It must continue to be held on that basis, which precludes its disposition (including by its exchange for other land), until revocation of protected status in accordance with the Act.
(d) Administration and management of conservation park and conservation areas
[23]Although s 61 refers to s 7(1) declarations, we are of the view, as explained at [87]–[93], that this is properly to be read as a declaration by the Minister of Conservation to the same effect under s 7(1A).
Conservation park is one kind of specially protected area under Part 4. It must be managed in a manner consistent with the purpose of conservation park land (as s 18(5) requires) and in accordance with s 19(1):
19 Conservation parks
(1)Every conservation park shall so be managed—
(a)that its natural and historic resources are protected; and
(b)subject to paragraph (a), to facilitate public recreation and enjoyment.
Under s 17A of the Act, the Department is also required to administer and manage all conservation areas and natural and historic resources in accordance with:
(a)statements of general policy approved under section 17B or section 17C; and
(b)conservation management strategies, conservation management plans, and freshwater fisheries management plans.
Two such statutory planning instruments were in question in the present proceedings, the Conservation General Policy adopted by the then Minister in 2005 and the Hawke’s Bay Conservation Management Strategy adopted in 1994.[24] Whether these instruments constrain the Minister’s decision‑making and the relevance of each to the decision under challenge was the subject of dispute which is considered below.[25]
(e) Marginal strips
[24]The relevant provisions of these documents are set out below at [55]–[61].
[25]See below at [128]–[149].
Section 24(1)(c) deems there to be reserved from the “sale or other disposition” of any land by the Crown a strip of land 20 metres wide extending along and abutting the landward margin of the bed of any river or any stream that has an average width of three metres or more. Such “marginal strips” are to be held in accordance with s 24C:
24C Purposes of marginal strips
Subject to this Act and any other Act, all marginal strips shall be held under this Act—
(a)for conservation purposes, in particular—
(i)the maintenance of adjacent watercourses or bodies of water; and
(ii)the maintenance of water quality; and
(iii)the maintenance of aquatic life and the control of harmful species of aquatic life; and
(iv) the protection of the marginal strips and their natural values; and
(b)to enable public access to any adjacent watercourses or bodies of water; and
(c)for public recreational use of the marginal strips and adjacent watercourses or bodies of water.
The Minister may, under s 24A, decrease the width of marginal strips in specified circumstances before disposition and may declare dispositions of land to be exempt from the requirement to reserve marginal strips under s 24B. She may do so, however, only where satisfied (in the case of reduction of width) “that [the strip’s] value in terms of the purposes specified in section 24C will not be diminished” and (in the case of exemption) “that the land has little or no value in terms of the purposes specified in section 24C; or … that any value the land has in those terms can be protected effectively by another means”. The Minister may also authorise the exchange of any marginal strip for another strip of land, but only if “satisfied that the exchange will better achieve the purposes specified in section 24C”.[26]
Statutory planning instruments adopted under ss 17B and 17D
[26]Conservation Act, s 24E(2).
Under s 17A of the Act conservation areas must be administered and managed in accordance with statements of general policy adopted under s 17B and conservation management strategies adopted under s 17D. Both types of instrument are adopted following procedures including public participation prescribed by the Act.[27]
(a) The Conservation General Policy
[27]Sections 17B(3) (in respect of statements of general policy) and 17F (in respect of conservation management strategies).
The Conservation General Policy in issue was adopted in 2005 after consultation and public notification. In a foreword to the Policy, the then Minister explained that its purpose was to “guide, and in some cases direct, my decisions as Minister” and to “guide and direct decisions of the Director‑General of Conservation and other decision‑makers under the legislation, such as the New Zealand Conservation Authority, conservation boards and fish and game councils”.
Chapter 6, in question in the present appeal, concerns “changes to public conservation lands”.
Policy 6(a) looks to “[l]and acquisition or exchange (including boundary changes)”. It provides that such acquisition or exchange:
… may be undertaken to manage, for conservation purposes, natural resources or historical and cultural heritage; or for the benefit and enjoyment of the public, including public access, where the land has international, national or regional significance; or where land acquisition or exchange will either:
i.improve representativeness of public conservation land; or
ii.improve the natural functioning or integrity of places; or
iii.improve the amenity or utility of places; or
iv.prevent significant loss of natural resources or historical and cultural heritage; or
v.improve the natural linkages between places; or
vi.secure practical walking access to public conservation lands and waters, rivers, lakes or the coast; or
vii.achieve any other purpose allowed for under the relevant Acts.
Under policy 6(b) (and subject to any statutory requirements), the classification of public conservation lands “may be reviewed from time to time to ensure that the classification of such lands continues to either”:
i.give appropriate protection and preservation for their natural resources, and/or historical and cultural heritage; or
ii.give appropriate protection and preservation for their educational, scientific, community, or other special features, for the benefit of the public; or
iii.enable integrated conservation management identified in conservation management strategies or plans; or
iv.provide for access and enjoyment by the public where that is in accordance with the purposes for which the land is held; or
v.reflect the values of public conservation lands that are present; or
vi.enable specified places to achieve conservation outcomes in the future.
Under policy 6(c), land disposal may be considered “where the legislation to which it is subject allows for disposal and the land has no, or very low, conservation values”. Policy 6(c) does not apply to conservation park because the Conservation Act does not allow for its disposal. But even stewardship land may not be disposed of in conformity with policy 6(c) unless the land has “no, or very low, conservation values”.
Under policy 6(d), and subject to policy 6(c), “land disposal should not be undertaken where the land in question either”:
i.has international, national or regional significance; or
ii.is important for the survival of any threatened indigenous species; or
iii.represents a habitat or ecosystem that is under-represented in public conservation lands or has the potential to be restored to improve the representation of habitats or ecosystems that are under-represented in public conservation lands; or
iv.improves the natural functioning or integrity of places; or
v.improves the amenity or utility of places; or
vi.improves the natural linkages between places; or
vii.secures practical walking access to public conservation lands and waters, rivers, lakes or the coast.
The Department took the view that the policies 6(b)–(d) of the Conservation General Policy did not apply to the revocation determination: it was not undertaken as part of a general review exercise or because the land no longer had conservation values, but instead to achieve an exchange under s 16A. The hearing convenor also considered that policies 6(b)–(d) of the Conservation General Policy were not in issue. He thought that the only policy of relevance was policy 6(a):
Policy 6b, for example, would apply if the C[onservation] P[ark] values were destroyed thus giving rise to a need to review the classification. Policies 6c and 6d are not relevant since, for purposes of exchanges, s 16A disapplies s 26 of the Act.
The relevant policy is 6a. This provides for land exchanges (including boundary changes which provides strong support for the view that exchanges are not limited to boundary adjustments) to manage for conservation purposes various resources where the land has international, national, or regional significance or where the exchange will achieve one or more of the matters listed in paragraphs (i) to (vii).
(b) The Hawke’s Bay Conservation Management Strategy
Section 3.7 of the Hawke’s Bay Conservation Management Strategy (adopted in 1994) concerns “land administration”. Its aim is “[t]o achieve the most appropriate statutory and administrative framework for the protection of natural or historic values on lands managed by the Department”. Of relevance is subs (ii), which provides:
The Department will review the status of areas under its management and proceed to appropriately alter them if necessary. This may result in a change of status to give greater protection to natural or historic values, or it may result in disposals or exchanges of lands which have low natural or historic value.
Section 3.7 too was thought by the Director‑General and his advisers to be inapplicable to the decisions being undertaken to effect the exchange on the basis that it dealt with the Department’s “own review of its land and any decisions it needs to make as a consequence about rationalising its holdings”. The current case, by contrast, was said to be one where the Department was “dealing with a 3rd party which has approached it with a view to exchanging one block of land for another”. In those circumstances, the Department took the view that the relevant test was s 16A and was one of “enhancement” through the exchange. If enhancement was achieved, “there [was] no impediment on the exchange of high value stewardship areas”. The Department of Conservation report on which the hearing convenor relied summarised the position as being that “there is no inconsistency with the CMS”. The hearing convenor considered that even if there had been inconsistency, s 3.7 of the Conservation Management Strategy could not constrain the scope of the Minister’s discretion to exchange stewardship land. A concession determination, on the other hand, could not be inconsistent with the Strategy.[28]
The decision in the High Court
[28]See s 17W(1). Here, the Departmental draft report on the concession application (referred to above at [6]–[7]) took the view that the application was inconsistent with provisions of the Conservation Management Strategy which provided for concessions.
Palmer J accepted the Society’s submission that the decision to revoke the status of specially protected land and the decision to exchange the resulting stewardship land were “legally distinct”.[29] Although he considered that the Director‑General’s decision paper “came perilously close to risking the wrong legal test being applied to the revocation decision”, he held that the Director‑General did satisfy himself that there was “a good and proper basis for the revocation founded in conservation purposes interpreted broadly”.[30] The Judge considered s 18(7) permitted consideration of wider conservation ends than the enhancement of conservation values of land managed by the Department which governed an exchange of land under s 16A.[31]
[29]Royal Forest and Bird Protection Society of New Zealand Inc v Minister of Conservation [2016] NZHC 220, (2016) 19 ELRNZ 370 at [2].
[30]At [2]. See also at [75] and [80].
[31]At [71].
The Judge took the view that the Director‑General’s decision to revoke the conservation park status of the 22 hectares was “rationally” within the purpose of the statute in promoting conservation,[32] “interpreted broadly”.[33] Although he acknowledged the emphasis in the statutory definitions of “conservation” and “protection” on the “intrinsic values of natural and historic resources”,[34] he did not accept the Society’s argument that consideration of the conservation purposes of the Act when making a revocation decision was confined to the land in issue:
[61] The reference to the promotion of conservation of “New Zealand’s natural and historic resources” in the Long Title is to a broad and collective concept. The meaning of the definition of “conservation” and the meaning of “conservation purposes” in the Act must be interpreted broadly, as must the purpose of the Act. There is nothing in the text of the statute that requires the intrinsic value of a single resource to be preserved or protected if that diminishes conservation purposes in New Zealand more broadly conceived.
[32]At [73].
[33]At [61].
[34]At [59].
Palmer J rejected the Minister’s contention that the revocation decision could be made for the purposes of the exchange. He accepted that the revocation and exchange decisions were distinct, relying on the legislative history of s 16A.[35] The 1989 Bill which inserted s 16A as introduced had not sought to confine exchanges of land to stewardship land alone.[36] A number of submissions were made to the Select Committee that the ability to exchange land should be restricted to stewardship land only. An amendment made at a late stage adopted that restriction.[37] Palmer J took the view that this legislative history meant that it was important to view the two decisions, for revocation and exchange, as distinct: “to view the process as a single step would be to obviate the clear Parliamentary intent not to provide a mechanism allowing specially protected land to be the subject of exchange”.[38]
[35]See at [62]–[68].
[36]If enacted, cl 11 of the Conservation Law Reform Bill 1989 (182–1) would have allowed the Minister to authorise “the exchange of any conservation area or any part of any conservation area for any other land”.
[37]Effected by Supplementary Order Paper 1990 (20) Conservation Law Reform Bill 1989 (182–2).
[38]Royal Forest and Bird Protection Society of New Zealand Inc v Minister of Conservation [2016] NZHC 220, (2016) 19 ELRNZ 370 at [68]. See also Palmer J’s discussion of the legislative history of s 16A at [64].
Despite recognising the decisions to be distinct, Palmer J thought that the argument for the Society went too far in suggesting that “satisfying the land exchange test in s 16A for stewardship land is not a proper purpose, and is an irrelevant consideration, for the decision to revoke the status of specially protected land”.[39] He considered the decision-maker was not required to “blind themselves” to the proposed exchange in making the revocation decision. That would be “artificial and inimical to good public administration”.[40] Indeed, the Judge thought to refuse to take into account the merits of the proposed land exchange might well itself constitute the error of failing to take into account a relevant consideration.[41] He considered the revocation decision to be less confined than the exchange decision because it was not focused on enhancement of the conservation values of land managed by the Department. Rather, the revocation decision involved “a broader conception of conservation purposes than only reference to what happens on land managed by [the Department]”.[42]
[39]At [69]–[70].
[40]At [70].
[41]At [70].
[42]At [71].
For revocation, Palmer J considered there need be only a “good and proper basis, founded in conservation purposes”, broadly understood.[43] He concluded that “the Director‑General of Conservation revoking specially protected status of conservation land guided by a broad interpretation of conservation purposes must ‘rationally be regarded as coming within the statutory purpose’”.[44] The Judge accepted that the Department “did not pretend to be considering revocation independently of the exchange”.[45] Because of this focus, the decision “came perilously close to risking the wrong legal test being applied to the revocation decision”.[46] The decision paper had referred only to enhancement of the conservation values of land managed by the Department and “the statutory test in s 16A for the exchange was the only test identified in the decision paper”.[47]
[43]At [71].
[44]At [73], in reference to the approach adopted in Unison Networks Ltd v Commerce Commission [2007] NZSC 74, [2008] 1 NZLR 42 at [53]–[55].
[45]At [74].
[46]At [75].
[47]At [75].
Nevertheless, Palmer J concluded that the revocation decision was not unlawful, even though “the basis on which the decision was made is harder to establish”.[48] The explanations given by the Director‑General “could be taken to refer only to the narrower test for s 16A” (enhancement of “the conservation values of land managed by the Department”, in the “Ruahine Forest park as a whole and the broader conservation estate”).[49] But Palmer J thought it significant that the Director‑General had said in evidence in the judicial review proceedings that he “took the view that the powers in the Act existed and focussed on whether the purpose of the Act was being advanced”.[50] On the basis of that statement, Palmer J was “not satisfied, on the evidence, that the Director‑General took too narrow a view of the revocation decision by applying to it the test for exchange”:[51]
He relied on his staff’s broader assessment of the conservation values of the Smedley block, including future values, rather than the current values urged on [the Department] by the Company. And in his evidence he goes beyond the s 16A test and the land managed by [the Department] to say “[t]hat said, I am convinced that what was offered to and accepted by me well and truly meets the purpose of the Conservation Act and is a good outcome for the Department and conservation”.
I consider, on the evidence before me, that the Director‑General did satisfy himself that there was a good and proper basis, founded in conservation purposes broadly interpreted, for the revocation decision. That is what he was required to do.
[48]At [78].
[49]At [78].
[50]At [79].
[51]At [79]–[80] (footnotes omitted).
Palmer J also dismissed the challenge based on failure to take into account the Conservation General Policy and the Hawke’s Bay Conservation Management Strategy. He took the view policy 6(b) and s 3.7 did not apply to the revocation decision because in their own terms he considered they were directed only to general reviews of protected status, rather than the “specific decision about the proposed revocation of the existing status of the Forest Park land here”.[52] On this basis failure to take the policies into account did not render the decision unlawful. Even had they applied, Palmer J thought they could not require a “narrow view of the purposes of the Act”[53] and that the decision could not be said to be rationally unconnected with the purposes of the Act.
[52]At [84]. The terms of the relevant policies are set out above at [56]–[59].
[53]At [85].
The challenge based on failure to consider the reservation of marginal strips from the exchange was considered by Palmer J to be “premature” because there had not yet been a disposition without such reservation.[54] He did, however, accept the submission of the Society that the exchange proposed would, when implemented, constitute a disposition of land under s 24 of the Act.[55] The Minister’s and the Company’s argument that the exchange was not a sale or disposition was “not tenable” based on the text and purpose of the legislation, including the wide definition of “sale” in s 2 of the Act and the “breadth of the additional clarification provided by subs 24(6)–(9)”.[56] Since however the exchange had not been implemented, there was only a “proposed disposition”.[57] Palmer J therefore declined to enter into further consideration of the question of reservation of marginal strips.
The Court of Appeal decision
[54]At [3] and [93].
[55]At [89].
[56]At [89].
[57]At [90].
The Society appealed to the Court of Appeal against the finding that the decision taken by the Director‑General to revoke the protected status of the 22 hectares of conservation park was lawful. The Minister and the Company cross appealed against the determination that the exchange constituted a disposition of land triggering the marginal strip reservation in s 24.
The Court of Appeal majority rejected the contention on behalf of the Minister that the ultimate question under s 18(7) was whether revocation would secure an overall benefit to the conservation park and to “the overall conservation estate”, so that “relative conservation values are a relevant consideration within the s 18(7) inquiry”:[58]
[68] … we are satisfied that any inquiry conducted under s 18(7) is limited to whether revocation is appropriate by reference to the particular resource. It does not allow a relativity analysis of the type undertaken by the Director‑General, conducted from the viewpoint of what will yield the better net result or gain to the conservation estate, or a comparative inquiry into whether land offered in exchange has a higher intrinsic value. Once the land crossed the threshold of special protection – in the present case, by way of the Director‑General’s declaration and the deeming provisions under s 61 – its designation could only be revoked if its intrinsic values had been detrimentally affected such that it did not justify continued preservation and protection; for example, if the park purposes for which it is to be held were undermined by natural or external forces.
…
[70] When deciding to exercise his or her statutory discretion to revoke the status of a specially protected area under s 18(7) the Director‑General is required to ask whether land which has satisfied the statutory criteria for special protection is no longer required for conservation purposes; that is, its intrinsic values no longer justify preservation and protection. Account must be taken of the purpose of the special protection – to permanently maintain its intrinsic values, provide for its appreciation and recreational enjoyment by the public, and safeguard the options of future generations – as well as the emphasis on recreation which distinguishes conservation parks from other specially protected areas. To be clear, the permanence of protection is not absolute: it depends on the land concerned maintaining the values for which it was designated.
[71] A proposal to exchange specially protected land will only be relevant to the s 18(7) inquiry if the Director‑General is first satisfied that the specially protected area no longer merits its particular designation – in this case, a conservation park held for park purposes – and should be reclassified as a stewardship area. The Act does not allow the Director‑General to exercise his or her revocation power by the touchstone of whether a decision will enhance the conservation values broadly construed of land managed by the Department. While that inquiry is appropriate to an exchange decision under s 16A(1), it is inapplicable where the revocation proposed is of a specially protected designation.
[58]Royal Forest and Bird Protection Society of New Zealand Inc v Minister of Conservation [2016] NZCA 411, [2016] 3 NZLR 828 at [67] per Harrison and Winkelmann JJ.
Harrison and Winkelmann JJ considered that the Director‑General’s decision was based “predominantly if not solely on the s 16A criterion”.[59] The Director‑General had not considered whether the 22 hectares should no longer be held for conservation purposes. The revocation was rather undertaken “solely to progress the proposed exchange”:[60]
[74] Contrary to [Palmer J’s] conclusion, we are satisfied that the Director‑General was driven by the s 16A test. As [counsel for the Minister] accepted, the Director-General was undertaking a comparative analysis of land that enjoyed special protection with land that did not. The Director‑General acknowledged throughout that he would not have revoked the status of the 22 hectares but for the exchange proposal. There is no difference, as [counsel for the Society] observed, between the Director‑General making the revocation decision to enable the exchange and applying the test for exchange to the revocation decision. Whichever way it is viewed, the conflation of the revocation and exchange inquiries had the effect of circumventing a statutory prohibition which had been the subject of careful legislative consideration before its enactment.
[75] The Director‑General did not inquire into whether the 22 hectares should be preserved because of its intrinsic values or protected in its current state to safeguard the option of future generations where the scientific evidence established its ecological significance. Nor did he inquire whether preservation or protection of the area in its current state was not practicable. Nor did he inquire why the 22 hectares should lose conservation park status when its inherent characteristics remained unchanged and otherwise deserving of protection and preservation. This factor assumes particular relevance where destruction of the 22 hectares – land previously deserving of special protection – was the inevitable consequence of his decision. The decision would free much of the land to be submerged and cease to be land; there could not be a more fundamental corruption of its intrinsic value.
[59]At [72].
[60]At [73].
Harrison and Winkelmann JJ noted that Palmer J had accepted that treating the process as a “single step” would “obviate Parliament’s clear intention not to provide a mechanism which allowed specially protected land to be the subject of exchange”.[61] They considered that the three “successive and interrelated decisions” taken by the Director‑General were, in substance, “a single step”. The decisions were “never intended to stand alone”.[62] What occurred was a “solitary decision to exchange the land by the means of revoking its designation”.[63] If the Smedley land deserved protection, the Department could have sought to acquire it. Harrison and Winkelmann JJ concluded that the revocation decision was unlawful because:[64]
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).
[61]At [78], citing Royal Forest and Bird Protection Society of New Zealand Inc v Minister of Conservation [2016] NZHC 220, (2016) 19 ELRNZ 370 at [68].
[62]At [78].
[63]At [78].
[64]At [80].
The Judges in the majority concluded that, once land qualifies for special protection, instrumental values (such as, perhaps, in maximising the conservation estate) are foreclosed by the legislation. It requires the Director‑General “to address only the intrinsic values of the land”:[65]
[56] … Specially protected areas attract that designation because they merit elevation from the holding-pen status of stewardship to the permanent preservation and protection of their natural and historic resources for the purpose of maintaining their intrinsic values, providing for their appreciation and recreational enjoyment by the public and safeguarding the options of future generations. Together, the purpose and interpretation provisions spell out a clear and dominant message. As Doogue J observed in Buller Electricity Ltd v Attorney-General, by reference to disposal of stewardship areas under s 26, the Act when viewed as a whole does not allow the Minister to sell or otherwise dispose of land unless satisfied that the land is no longer required for conservation purposes.[66]
[65]At [57].
[66]Buller Electricity Ltd v Attorney-General [1995] 3 NZLR 344 (HC) at 352.
Ellen France P dissented from this decision. She accepted that the Director‑General was obliged to make two separate decisions: “first, to revoke the status of the land as a conservation park so the land became stewardship land and, secondly, to exchange the stewardship land for other land”.[67] In making the first decision, Ellen France P considered that the Director-General was not limited to consideration of the conservation values of the 22 hectares but could consider conservation purposes “more broadly”. In agreement with Palmer J in the High Court, she considered it was sufficient that the Director‑General was satisfied that there was “a good and proper basis for the revocation founded in conservation purposes interpreted broadly”.[68] The Director‑General was not confined to being satisfied that an exchange would enhance the conservation values of land managed by the Department.[69]
[67]Royal Forest and Bird Protection Society of New Zealand Inc v Minister of Conservation [2016] NZCA 411, [2016] 3 NZLR 828 at [87].
[68]At [87], citing Royal Forest and Bird Protection Society of New Zealand Inc v Minister of Conservation [2016] NZHC 220, (2016) 19 ELRNZ 370 at [2], [61] and [71].
[69]At [87].
Accordingly, we propose to deal with the case in terms of two questions:
(a)Was the s 18(7) decision made on the basis of irrelevant considerations?
(b)Was the s 18(7) decision inconsistent with the Conservation General Policy and Hawke’s Bay Conservation Management Strategy?
Was the s 18(7) decision made on the basis of irrelevant considerations?
The purposes of the Conservation Act 1987
The long title provides that the purpose of the Act is to:
promote the conservation of New Zealand’s natural and historic resources, and for that purpose to establish a Department of Conservation
(emphasis added)
Section 2 relevantly provides:
conservation means the preservation and protection of natural and historic resources for the purpose of maintaining their intrinsic values, providing for their appreciation and recreational enjoyment by the public, and safeguarding the options of future generations
…
preservation, in relation to a resource, means the maintenance, so far as is practicable, of its intrinsic values
…
protection, in relation to a resource, means its maintenance, so far as is practicable, in its current state; but includes—
(a) its restoration to some former state; and
(b) its augmentation, enhancement, or expansion
Section 6 provides for the functions of the Department of Conservation. It relevantly provides:
6 Functions of Department
The functions of the Department are to administer this Act and the enactments specified in Schedule 1, and, subject to this Act and those enactments and to the directions (if any) of the Minister,—
(a) to manage for conservation purposes, all land, and all other natural and historic resources, for the time being held under this Act, and all other land and natural and historic resources whose owner agrees with the Minister that they should be managed by the Department:
…
(c) to promote the benefits to present and future generations of—
(i) the conservation of natural and historic resources generally and the natural and historic resources of New Zealand in particular; and
…
(e) to the extent that the use of any natural or historic resource for recreation or tourism is not inconsistent with its conservation, to foster the use of natural and historic resources for recreation, and to allow their use for tourism:
The status of the 22 hectares as a conservation park
Immediately prior to the Act coming into effect, the 22 hectares in question formed part of the Ruahine Forest Park. They were accordingly deemed by s 61(2) to be a conservation park, a deemed status which was to persist until either there was a declaration under s 7(1) that the land be held for conservation purposes or the land was vested in a State enterprise under s 24 of the State-Owned Enterprises Act 1986.[147]
[147]Conservation Act 1987, s 61(2)(c) and (d).
Section 7 provides for declarations that land is held for conservation purposes. Land subject to such a declaration constitutes a “conservation area” as defined by s 2. Sections 18, 18AA and 18AB provide for “additional protection or preservation requirements” to be provided by declarations that particular conservation areas are to be held for particular purposes. Most relevantly for present purposes, this includes (by virtue of s 18(1)) “the purpose of a conservation park”.
Section 19(1) provides:
19 Conservation parks
(1) Every conservation park shall so be managed—
(a) that its natural and historic resources are protected; and
(b)subject to paragraph (a), to facilitate public recreation and enjoyment.
Stewardship areas
Stewardship areas are defined in this way:[148]
stewardship area means a conservation area that is not—
(a) a marginal strip; or
(b) a watercourse area; or
(c)land held under this Act for 1 or more of the purposes described in section 18(1); or
(d)land in respect of which an interest is held under this Act for 1 or more of the purposes described in section 18(1)
[148]Section 2.
Section 25 provides:
Every stewardship area shall so be managed that its natural and historic resources are protected.
Disposal of conservation areas
Disposal of conservation areas is addressed in ss 16, 16A and 26. The starting point is that there can be no disposal unless specifically authorised. This is provided for by s 16(1):
16 Disposal of conservation areas
(1)Notwithstanding anything in the State-Owned Enterprises Act 1986 but subject to the Public Works Act 1981, no conservation area or interest in a conservation area shall be disposed of except in accordance with this Act.
The Act provides two mechanisms for the disposal of stewardship areas: disposal under s 26 and exchange under s 16A.
Section 26 relevantly provides:
26 Disposal of stewardship areas
(1)Subject to subsections (2) and (3), the Minister may dispose of any stewardship area that is not foreshore or any interest in any stewardship area that is not foreshore.
(2)The Minister shall not dispose of any land or any interest in any land adjacent to—
(a) any conservation area that is not a stewardship area; or
(b)land administered by the Department under some enactment other than this Act,—
unless satisfied that its retention and continued management as a stewardship area would not materially enhance the conservation or recreational values of the adjacent conservation area or land or, in the case of any marginal strip, of the adjacent water, or public access to it.
(3)The Minister shall not dispose of any land or any interest in land without first giving notice of intention to do so; and section 49 shall apply accordingly.
Section 49 provides for a process under which publication of what is proposed is required. Members of the public and organisations may object and be heard in respect of the proposal.[149]
[149]Section 49(2).
The other, and for present purposes more significant, mechanism is under s 16A:
16A Exchanges of stewardship areas
(1)Subject to subsections (2) and (3), the Minister may, by notice in the Gazette, authorise the exchange of any stewardship area or any part of any stewardship area for any other land.
(2)The Minister shall not authorise any such exchange unless the Minister is satisfied, after consultation with the local Conservation Board, that the exchange will enhance the conservation values of land managed by the Department and promote the purposes of this Act.
(3)All land acquired by the Crown under this section shall be held for such conservation purposes as the Minister may specify in respect of that land by notice in the Gazette.
Section 16A was inserted by the Conservation Law Reform Act 1990, s 11. While in Bill form, the clause would have allowed the Minister to authorise “the exchange of any conservation area or any part of any conservation area for any other land”.[150] Presumably as a response to submissions opposing the breadth of this power, the Bill was amended so that the exchange power was confined to stewardship land.
The power to revoke a purpose for which land is held
[150]Conservation Law Reform Bill 1989 (182–1), cl 11.
This is pursuant to s 18(7) and (8):
(7)Subject to subsection (8), the Minister may, by notice in the Gazette, vary or revoke the purpose, or all or any of the purposes, for which any land or interest held under subsection (1) is held; and it shall thereafter be held accordingly.
(8)Before varying or revoking any purpose under subsection (7), the Minister shall give public notice of intention to do so; and section 49 shall apply accordingly.
The effect of such a revocation is that the land affected becomes a stewardship area.
The basis on which the revocation decision was made
In his affidavit in the High Court, the Director-General of Conservation explained the rationale of his decision in this way:
I assessed the scientific information, including the additional information values on a before and after the dam scenario. I considered the information, which covered not only the [22 hectares] but also the Smedley land to be thorough, reliable and objective and the peer reviews of it assisted in this. There was no doubt in my mind that what was being proposed would enhance the conservation values of land managed by the Department and promote the purposes of the Act. Based on the present values of the [22 hectares] and the Smedley block, I was satisfied that the exchange would enhance the conservation values of the Ruahine Forest park as a whole and the broader conservation estate.
Three factors were thus identified:
(a)enhancement of the conservation values of the land managed by the Department;
(b)promotion of the purposes of the Act; and
(c)enhancement of the conservation values of the Ruahine Forest Park as a whole.
The approach of Palmer J in the High Court
The Judge accepted that the revocation and exchange decisions required separate consideration:
[68] … I agree with [the Society] that there are two distinct decisions required where a specially protected conservation area such as a conservation park is proposed to be exchanged for other land. That is reinforced by the scheme and purpose of the legislation. First, the decision-maker must decide whether to revoke the specially protected purpose of the conservation area. Only if the outcome of that decision is revocation may the decision-maker then decide whether to undertake the land exchange. To view the process as a single step would be to obviate the clear Parliamentary intent not to provide a mechanism allowing specially protected land to be the subject of exchange.
He went on to conclude that although the Director‑General had come “perilously close” to deciding the revocation decision by reference to the s 16A criteria,[151] he had not done so:
[78] … As noted above, the Director‑General’s evidence is that “[t]here was no doubt in my mind that what was being proposed would enhance the conservation values of land managed by the Department and promote the purposes of the Act”. He was “satisfied that the exchange would enhance the conservation values of the Ruahine Forest park as a whole and the broader conservation estate”. Conceivably, those two statements could be taken to refer only to the narrower test for s 16A.
[79] However, the Director‑General’s evidence also directly addressed the objection raised by [the Society] in submissions that is the subject of this challenge. To that, the Director‑General says “[i]n response to the above approach, I took the view that the powers in the Act existed and focussed on whether the purpose of the Act was being advanced”. I am not satisfied, on the evidence, that the Director‑General took too narrow a view of the revocation decision by applying to it the test for exchange. He relied on his staff’s broader assessment of the conservation values of the Smedley block, including future values, rather than the current values urged on [Department of Conservation] by the Company. And in his evidence he goes beyond the s 16A test and the land managed by [Department of Conservation] to say “[t]hat said, I am convinced that what was offered to and accepted by me well and truly meets the purpose of the Conservation Act is a good outcome for the Department and conservation”.
(footnotes omitted)
[151]At [75].
Pausing at this point, and contrary to the view of the Judge, we are inclined to see the enhancement of the Ruahine Forest Park as a factor relevant to revocation which, in terms of its specificity, can most plausibly be seen as going beyond the comparative assessment exercise contemplated by s 16A.
The approaches proposed in the Court of Appeal
The general approach of Harrison and Winkelmann JJ is captured in this passage of their reasons:[152]
[70] When deciding to exercise his or her statutory discretion to revoke the status of a specially protected area under s 18(7) the Director‑General is required to ask whether land which has satisfied the statutory criteria for special protection is no longer required for conservation purposes; that is, its intrinsic values no longer justify preservation and protection. Account must be taken of the purpose of the special protection — to permanently maintain its intrinsic values, provide for its appreciation and recreational enjoyment by the public, and safeguard the options of future generations — as well as the emphasis on recreation which distinguishes conservation parks from other specially protected areas. To be clear, the permanence of protection is not absolute: it depends on the land concerned maintaining the values for which it was designated.
[71] A proposal to exchange specially protected land will only be relevant to the s18(7) inquiry if the Director‑General is first satisfied that the specially protected area no longer merits its particular designation — in this case, a conservation park held for park purposes — and should be reclassified as a stewardship area. The Act does not allow the Director‑General to exercise his or her revocation power by the touchstone of whether a decision will enhance the conservation values broadly construed of land managed by the Department. While that inquiry is appropriate to an exchange decision under s 16A(1), it is inapplicable where the revocation proposed is of a specially protected designation.
[152]Royal Forest and Bird Protection Society of New Zealand Inc v Minister of Conservation [2016] NZCA 411, [2016] 3 NZLR 828 (Ellen France P, Harrison and Winkelmann JJ) [Forest and Bird (CA)].
They were also of the view that the Director‑General had conflated the revocation and exchange decisions:
[74] Contrary to the Judge’s conclusion, we are satisfied that the Director‑General was driven by the s 16A test. As Mr Prebble accepted, the Director‑General was undertaking a comparative analysis of land that enjoyed special protection with land that did not. The Director‑General acknowledged throughout that he would not have revoked the status of the 22 hectares but for the exchange proposal. There is no difference, as Mr Salmon observed, between the Director‑General making the revocation decision to enable the exchange and applying the test for exchange to the revocation decision. Whichever way it is viewed, the conflation of the revocation and exchange inquiries had the effect of circumventing a statutory prohibition which had been the subject of careful legislative consideration before its enactment.
Ellen France P dissented in the Court of Appeal, being generally in agreement with Palmer J. In the course of her reasons, she considered that it was:
[94] … of some relevance that the difference in the identified values is in the additional requirement that conservation parks are to be managed in a way that facilitates public recreation and enjoyment. In this case, there is force in the submission that the factors that primarily justify maintaining the conservation park status over and above stewardship, that is, public recreation and enjoyment, were not present in relation to the 22 hectares because of difficulties with access. But the [Ruahine Forest Park] as a whole would be enhanced in terms of public recreation and enjoyment by the addition of the Smedley Block, which would not involve difficulties in terms of access.
Our approach
Section 16A(2) stipulates that an exchange may be approved only if it: (a) would “enhance the conservation values of land managed by the Department”; and (b) promotes the purposes of the Act. Given the statutory language, the departmental assessments of comparative conservation values understandably focused on whether the conservation values of the land managed by the Department would be enhanced by the exchange of the 22 hectares for the Smedley land. Such a comparative exercise was required by s 16A and cannot, in itself, be open to criticism. Indeed, the conclusion reached in respect of this assessment was not the subject of discrete challenge.
In the course of argument, Mr Salmon, for the Society, denied that the exchange resulted in a net overall conservation gain. This argument was put in various ways: for instance, that the conservation values of the Smedley block were not under immediate threat and some protection was provided by the Resource Management Act 1991. As well, the land being for sale, it could presumably have been acquired by purchase and not just by exchange.
This argument raises some difficulty. The departmental assessments do not explicitly proceed on the basis of a net overall conservation gain, although possibly the assumption that there would be such a gain is implicit in some of the material. Mr Salmon’s argument as just summarised is not mentioned in the judgment of Palmer J in the High Court and the affidavits filed on behalf of the Society do not appear to have been addressed to it. Had it been addressed in those affidavits, it may well have been answered by additional evidence. Accordingly we think it appropriate to put this aspect of Mr Salmon’s submission to one side.
As this Court observed in Unison Networks Ltd v Commerce Commission:[153]
A statutory power is subject to limits even if it is conferred in unqualified terms. Parliament must have intended that a broadly framed discretion should always be exercised to promote the policy and objects of the Act. These are ascertained from reading the Act as a whole. The exercise of the power will be invalid if the decision-maker “so uses his discretion as to thwart or run counter to the policy and objects of the Act”. A power granted for a particular purpose must be used for that purpose … .
[153]Unison Networks Ltd v Commerce Commission [2007] NZSC 74, [2008] 1 NZLR 42 at [53] (footnotes omitted).
The majority’s approach is to construe s 18(7) as if it contained the italicised additions:
Subject to subsection (8), the Minister, if satisfied that the intrinsic conservation merits of the land no longer warrant being held as a conservation park, ecological area, or for any other purpose specified under s 18(1) may, by notice in the Gazette, vary or revoke the purpose, or all or any of the purposes, for which any land or interest held under subsection (1) is held; and it shall thereafter be held accordingly.
No hint of such a limitation is to be found in the language of s 18(7). Nor is there any other specific provision in the Act which explicitly suggests this limitation. The effect of the majority approach is to impose a restriction which is substantially the same as that provided by s 24(3) of the Reserves Act 1977:
No change of classification or purpose of a scenic, nature, or scientific reserve, or any part thereof, to a recreation, historic, government purpose, or local purpose reserve shall be made, except where, in the opinion of the Minister, the reserve or the part thereof is by reason of the destruction of the forest, bush, or other vegetation, or of the fauna or scientific or natural features thereon, or for any other like cause, no longer suitable for the purposes of its classification.
If the legislative purpose had been that s 18(7) should be constrained in the way proposed by the majority, we would have expected a provision similar to s 24(3) of the Reserves Act to have been enacted.
The limitation proposed by the majority might also be thought to sit oddly with s 61(2) of the Conservation Act and s 24 of the State-Owned Enterprises Act under which the 22 hectares could simply have been vested in a State enterprise.
The key differences between conservation park and stewardship land are that stewardship land, but not conservation park, can be exchanged (or otherwise disposed of) and the facilitation of recreational use and enjoyment is provided for in respect of conservation park, but not stewardship land.[154] Where a decision is required whether land should be held as a conservation park or stewardship land, it might be thought obvious that the decision-maker should approach the issue by reference to those differences in determining which is the better classification. And in doing so, the decision‑maker must take into account the purposes of the Act.
[154]We note that the majority (above at [41]) see exchangeability as the primary difference between conservation park and stewardship land.
We accept that the statutory history of s 16A provides some assistance to the Society’s argument. The narrowing of s 16A (so that it applies only to stewardship land) from what was proposed (the exchangeability of all land held for conservation purposes) could be side-stepped if a conservation park declaration could be set-aside by reference only to the criteria which must be satisfied for a subsequent s 16A exchange of the land. It follows that there is certainly scope for argument that a s 18(7) revocation cannot be justified simply on the basis that, assuming revocation, the land would be properly exchangeable under s 16A.
Accepting, as we do, the force of this argument, we do not see it as precluding a revocation decision being made by reference to the appropriateness of the proposed exchange. In part this is for the reason already given, that one of the key distinctions between conservation park land and stewardship land is the exchangeability of the latter. As well, the purposes of the Act are required to be taken into account in respect of the exchange decision (explicitly by reason of s 16A(2) and by obvious implication in respect of s 18(7)). There being only one set of purposes, there will necessarily be substantial overlap in the criteria to be taken into account in both decisions.
In the present case, the decision to revoke the declaration did not rest simply on an abstract comparison of the conservation values of the 22 hectares and the Smedley block. Eight hectares of the 22 hectares was separated from the rest of the Ruahine Forest Park. The Smedley block is adjacent to the Gwavas Conservation Area which is near the Ruahine Forest Park and bringing it under the control of the Department offers some management and recreational advantages.
Was the s 18(7) decision inconsistent with the Conservation General Policy and Conservation Management Strategy?
The statutory setting
Under s 17A of the Act “the Department” is to “administer and manage” conservation areas “in accordance with” both “statements of general policy” and “conservation management strategies”.[155]
[155]As well as (irrelevant for our purposes) conservation management plans and freshwater fisheries management plans.
Section 17N(2) provides:
No such statement or strategy or plan shall restrict or affect the exercise of any legal right or power by any person other than the Minister or the Director-General … .
The Conservation General Policy
Policy 6(a) of the Conservation General Policy (CGP) provides:
6(a)Land acquisition or exchange (including boundary changes) may be undertaken to manage, for conservation purposes, natural resources or historical and cultural heritage; or for the benefit and enjoyment of the public, including public access, where the land has international, national or regional significance; or where land acquisition or exchange will either:
i. improve representativeness of public conservation land; or
ii. improve the natural functioning or integrity of places; or
iii. improve the amenity or utility of places; or
iv. prevent significant loss of natural resources or historical and cultural heritage; or
v. improve the natural linkages between places; or
vi. secure practical walking access to public conservation lands and waters, rivers, lakes or the coast; or
vii. achieve any other purpose allowed for under the relevant Acts.
It was this policy which was focused on in the decision-making process.
The Society relies on policy 6(b) of the same document:
6(b)Subject to statutory requirements, the classification of any public conservation lands may be reviewed from time to time to ensure that the classification of such lands continues to either:
i.give appropriate protection and preservation for their natural resources, and/or historical and cultural heritage; or
ii.give appropriate protection and preservation for their educational, scientific, community, or other special features, for the benefit of the public; or
iii.enable integrated conservation management identified in conservation management strategies or plans; or
iv.provide for access and enjoyment by the public where that is in accordance with the purposes for which the land is held; or
v.reflect the values of public conservation lands that are present; or
vi. enable specified places to achieve conservation outcomes in the future.
The majority judgment also refers to policies 6(c) and (d).[156] We see these as addressing land disposal (that is, under s 26) and as not material to land exchange decisions under s 16A. They were not relied on by the Society and we do not propose to discuss them further in these reasons.
The Hawke’s Bay Conservation Management Strategy
[156]See above at [58]–[59]; and especially at [145]–[146].
The Society relies on section 3.7(ii) of the Hawke’s Bay Conservation Management Strategy (CMS):
The Department will review the status of areas under its management and proceed to appropriately alter them if necessary. This may result in a change of status to give greater protection to natural or historic values or it may result in disposals or exchanges of land which have low natural or historic value.
The objective of chapter 3.7 is expressed in these terms:
To achieve the most appropriate statutory and administrative framework for the protection of natural or historic values on lands managed by the Department.
The decision-making process
In the decision-making process, policy 6(b) of the CGP was seen as directed at situations where the Department proactively reviews the classification of land intended to be retained with a view to ensuring the classification “continues” to achieve one or more specified outcomes. And chapter 3.7 of the CMS, especially its objective and section 3.7(ii), was likewise seen as directed to the proactive and periodic general review of land under departmental management. Both documents were seen as setting out processes which are intended to occur and neither purport to limit the ability the Department and/or Minister to exercise statutory powers in circumstances, such as the present, which they do not address.
The approaches taken in the Courts below
Arguments addressed to the CGP and the CMS were dismissed by Palmer J:[157]
[83] The problem with this argument is that the particular policies that [the Society] point to are not policies which govern the decision under challenge. The decision under challenge is to revoke the specially protected status of the Forest Park land under s 18(7) of the Act. Policy 6(b) of the Conservation General Policy provides [the Department of Conservation] with a discretion to conduct a general review, from time to time, of the classification of public conservation lands and of the status of areas under DoC’s management. Section 3.7 of the Hawke’s Bay CMS, entitled “Land Administration”, relates to the need for [the Department of Conservation] to conduct a review of the status of land “as the existing status may not necessarily reflect their natural values”. The objective is stated to be [t]o achieve the most appropriate statutory and administrative framework for the protection of natural or historic values on lands managed by the Department.
[84] The nature and purpose of the general review exercises which are guided by these policies are quite different from the specific decision about the proposed revocation of the existing status of the Forest Park land here. As the Crown submits, policy 6(a) of the Conservation General Policy applies, and links the consideration of land exchange back to conservation purposes as required by the Act … .
[157]Forest and Bird (HC), above n 145.
Given their approach on the other issues in the case the majority in the Court of Appeal was not required to address this issue.[158]
Our approach
[158]Forest and Bird (CA), above n 152, at [81].
On this aspect of the case, we agree with Palmer J. The policies in the CGP and CMS are expressed in general terms and provide a framework for review processes which are intended to take place in the ordinary course of the Department’s administration of the Act. They do not apply to consideration of specific one-off proposals.
Accordingly, we would have allowed the appeal.
Solicitors:
Sainsbury Logan & Williams, Napier for Appellant SC 106/2016 and Second Respondent SC 107/2016
Sally Gepp, Nelson for First Respondent SC 106/2016 and SC 107/2016
Crown Law Office, Wellington for Second Respondent SC 106/2016 and Appellant SC 107/2016
at [53]–[55].
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