The Government is misrepresenting the effect of the Ruataniwha Dam decision

The Minister of Conservation has failed in her attempt to swap a pristine piece of conservation land for a cow paddock so that the ill conceived Ruataniwha Dam can proceed.

I am not surprised.  The Ruataniwha Dam proposal is an appalling waste of resources and if it was completed it would poison the Tukituki river.

The background is complex and the politics labyrinth but essentially the Hawkes Bay Regional Council wanted to build a big as damn flooding pristine conservation areas so that it could intensify farming in the Hawkes Bay.  Much effort went into presenting the proposal as something that would be good for the environment.  The reality was that it was going to effectively destroy the Tukituki River by rendering it toxic through increased nitrate levels.

The Regional Council wanted to get around this problem by measuring phosphate levels only and not nitrate levels.  If you do not measure it then I guess it does not become a problem.  I wrote about DOC’s involvement in the Board of Inquiry into the Dam previously, specifically its involvement in a submission concerning water quality methodology and said this:

The original 32 page draft submission [prepared by DOC] said that the proposal is a risky and untested approach to water management which could kill the rivers involved.  It also said the risks of the dam project had not been fully assessed, and there was an inadequate management plan for potentially high impact effects on rivers.  It was replaced with a 2 paragraph submission that did not refer to these concerns and was neutral on the proposal.

The Board of Inquiry in its wisdom decided to strictly limit nitrate levels and this should have killed the idea of the dam.  But the Hawkes Bay Regional Council and the Government have refused to accept the inevitable and have still fought on.

One battle they recently lost in the Supreme Court concerned the legality of the decision by the Director-General of Conservation to allow a land swap so that the dam could proceed.  The Government has tried to suggest that this decision is a bad one on the basis that for some time the Government has engaged in land swaps that have resulted in it obtaining land with superior conservation values.

But this is spin, pure and simple.  If you read the judgment you will come across phrases such as these:

… [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”.

… the area in question was accepted to have high conservation values …

…[i]t 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 decision relies on the distinction between “conservation” land and “stewartship” land, the former having higher values.  While the latter land can be swapped, for this to occur in relation to the former a separate test, that the land itself is not deserving of special protection, has to be met.

As said by the Court:

[114] It was not enough that on a “relativity analysis” there was considered to be a margin, on balance, in favour of the Smedley land in the swap. Gain in exchange of land was not the right question in considering revocation of protected status. If it were, there would be inevitable collapsing of the two decisions as to revocation and exchange, despite the recognition that they are distinct, and despite the legislative history which made it clear that gain in exchange of land did not justify exchange of additionally protected land but was available only in respect of stewardship areas.

[115] Revocation under s 18(7) must be assessed by reference to the particular resources affected and does not lend itself to a calculation of whether an exchange of land will lead to net gain to either the forest park as a whole or the wider conservation estate. Nor is it sufficient to undertake a comparative assessment as to whether land proposed to be obtained in an exchange has higher intrinsic conservation values. Revocation of protected status is open only if the conservation values of the resources on the subject land no longer justify that protection.

And this is no accident.  The Court referred to the Parliamentary debates and the history of the Act and concluded that the different rules for land swaps for stewardship and conservation was a deliberate decision.  Specifically it said this:

The 1989 Bill which inserted s 16A as introduced had not sought to confine exchanges of land to stewardship land alone. 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. 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”.

So this belies the claim that the decision was unexpected and was going to cause all sorts of difficulties for the Government.  But this did not stop the Government from claiming that it would.

Bill English immediately indicated that a law change could be expected.  From the Herald:

Minutes after the Supreme Court ruled against plans for a huge dam in the Hawke’s Bay, Prime Minister Bill English said his Government would change the law to allow such projects to go ahead.

In a major victory for conservation group Forest & Bird, the court dismissed an appeal by the Department of Conservation to swap 22ha of conservation land for 170ha of private farmland.

The land swap would have allowed the Ruahine Forest Park land to be flooded to create the country’s largest irrigation project.

English, speaking to NewstalkZB, immediately said Parliament would have to consider a law change.

“This will become a matter now for whether we change the legislation.

“Everyone thought the legislation meant that you could trade a lower conservation piece of land in return for higher conservation piece of land.

“The Supreme Court apparently, on the face of it, is telling us that that’s not what the legislation lets you do.

Notice the reframing of reality, that the piece of land was of a lower intrinsic value, had started almost immediately.  But as noted by Isobel Ewing, to describe the land as of having lower intrinsic value was technically a lie.

And Maggie Barry chimed in also claiming that the decision would stop the swapping of lower quality with higher quality land.  From Stuff:

Conservation Minister Maggie Barry said the Government had long believed the law allowed DOC to make land-swaps if it ended up with land that had higher conservation values.

“The Supreme Court finding that the Director-General cannot consider that broader picture has far-reaching implications and we will now be working through the effects of that,” Barry said.

“We will now look at changing the law to ensure we can continue to improve conservation outcomes by having the ability to make land swaps where the outcome would be a win for conservation.”

We are facing two possibilities, either the Government will let the Supreme Court decision stand but change the Conservation Act, or it will change the law so that the Dam project can proceed.

If the latter occurs then this will be a breach of long standing constitutional principles.  As noted by Geoffrey Palmer:

Any attempt to retrospectively reverse the court’s decision in the dam case would be deeply offensive to the rule of law and a constitutional outrage.

It would deprive the litigants of the fruits of their forensic victory.

Why would the government appear and defend itself in court and then use legislation to overrule the decision when it loses?

Is that compatible with our democratic framework involving the separation of powers between the executive and the independent judiciary?

It is fine for the law to be changed prospectively if a judicial decision finds the law to be faulty in the view of Parliament.

But to change the situation retrospectively is wrong in these circumstances.

It has happened before.  As noted by David Parker back in the 1980s the Muldoon Government passed special legislation to get the Clyde Dam built.

Even if the decision is allowed to stand but the law amended this will also be a bad result for the environment.  Pristine conservation land has ancient forests on it.  They should be preserved at all costs and if another piece of land with high conservation values is discovered then it should be added to the conservation estate, not swapped.

I wonder how far the Government will push this?  If it does it will not be the first time that it has misinterpreted the law but used this as a pretext to make changes that have a negative effect.  But this Government thinks that it is always rights and these sorts of problems are always someone else’s fault.