Royal Forest and Bird Protection Society of New Zealand Incorporated v Minister of Conservation [2016] NZHC

220 [19 February 2016]
IN THE HIGH COURT OF NEW ZEALAND
WELLINGTON REGISTRY
CIV-2015-485-781
[2016] NZHC 220

BETWEEN

ROYAL FOREST AND BIRD PROTECTION SOCIETY OF NEW ZEALAND INCORPORATED
Applicant

AND

MINISTER OF CONSERVATION
First Respondent

HAWKE'S BAY REGIONAL INVESTMENT COMPANY LIMITED
Second Respondent

[…]

Judgment:

19 February 2016

JUDGMENT OF PALMER J

[…]

Summary

[1] This case goes to the heart of the purpose of the Conservation Act 1987 (the Act). The Director-General of Conservation has revoked the status of 22 hectares of specially protected land in the Ruahine Conservation Park, required for the proposed Ruataniwha dam, in order to swap it for 170 hectares of land to be added to the Park. He considered this would enhance the conservation values of land managed by the Department and promote the purposes of the Act. Forest & Bird mounts three challenges.

[2] In relation to the first and central challenge I agree with Forest & Bird that the two decisions, to revoke the status of specially protected land so that it becomes stewardship land, and then to exchange the stewardship land for other land, must be legally distinct. However, I consider that it would be artificial and inimical to good public administration for the public submissions and the decision on revocation to be prevented by law from taking into account the proposed land exchange. What is required is that, in making the revocation decision, the decision-maker must satisfy himself or herself that there is a good and proper basis for the revocation founded in conservation purposes interpreted broadly. That is broader than being satisfied that an exchange will enhance the conservation values of land managed by the Department. On the evidence before me, although the focus of the decision paper on the exchange came perilously close to risking the wrong legal test being applied to the revocation decision, I consider the Director-General did satisfy himself of what was required. Accordingly, I dismiss this challenge.

[3] I also dismiss Forest & Bird’s second challenge that the revocation decision was not in accordance with, and did not have regard to, two specific policies in the Conservation General Policy and the Hawke’s Bay Conservation Management Strategy. I consider the two policies do not apply to the revocation decision. And I regard the third challenge, based on the failure to reserve marginal strips from sale or disposition, as premature. Marginal strips may have to be reserved. But there has not yet been a sale or disposition without such a reservation.

[4] Because Forest & Bird has competently and responsibly advanced legitimate arguments in the public interest I would be reluctant to award costs against them but would consider submissions from the parties on that matter if they wish me to do so.

Full judgment: RoyalForest.pdf

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