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Wallace, Pip --- "Integrated conservation management; spatial planning for the movement of species in the landscape" [2011] NZJlEnvLaw 7; (2011) 15 NZJEL 185

Last Updated: 30 January 2023

185

Integrated Conservation Management; Spatial Planning for the Movement of Species in the Landscape

Pip Wallace*

This article examines the ways in which environmental law in New Zealand incorporates ecological knowledge and recognises and provides for movement of animals in the landscape, in the context of biodiversity protection in the New Zealand environment. Integrated management of the environment requires an integrated policy approach, and one which recognises interconnections in the environment. Consideration of international and domestic law, with a focus on Regional Policy Statements made under the Resource Management Act 1991, confirms that opportunity exists to further develop an ecosystems approach that recognises ecological integrity in the landscape. The article identifies that although national policy options exist to develop a nationally consistent approach, policy as currently drafted is limited by subject matter and spatial application. As such, it fails to adequately capture and support the notion of ecological integrity in a holistic manner. Similar limitations are revealed in lower-order documents, the focus of which tends to be constrained to considerations of significant habitat and vegetation, although elements of a broader view may be discerned. A challenge for New Zealand policy-makers is to develop policy and associated responses well aligned with the ecological prerequisites of animals.

*Pip Wallace LLB (Auckland), LLM (Hons) (Waikato). Environmental Planning Programme, Faculty of Arts and Social Sciences, University of Waikato, Private Bag 3105, Hamilton, New Zealand. Email: pwallace@waikato.ac.nz; telephone: +64 7 856 2889, ext 6199.

186 New Zealand Journal of Environmental Law

1. INTRODUCTION

The intention of this article is to examine the ways in which environmental law in New Zealand incorporates ecological knowledge and recognises and provides for movement of animals in the landscape, in the context of biodiversity protection in the New Zealand environment.

Conservation of biodiversity is a key concern for those involved in man­ aging natural and physical resources in New Zealand. In line with global trends,¹ New Zealand is experiencing significant and ongoing reduction in biodiversity.² Legal responses have tended to focus on species protection and the creation of protected areas.³ These measures have achieved some significant conservation gains, yet despite this, loss continues.

A key concern of this article is that legal responses need to be both suffi­ ciently flexible and comprehensive in order to recognise and provide for the ecological prerequisites of animals, in order to conserve species. The need to align conservation management techniques and planning with ecological knowledge is a well­understood concept, but not one that is universally implicit or expressed in planning documents and legislation.⁴ Brooks and others identify that, in general terms, in the United States a “regime of ecosystemic law” has been under way for at least the past half­century.⁵ The term is used to describe a system “in which law and ecology mutually inform each other’s content, method and purpose”.⁶ The concepts underlying this system are defined thus:⁷

1. Conference of the Parties to the Convention on Biological Diversity X/2. Strategic Plan for Biodiversity 2011–2020 and the Aichi Biodiversity Targets (CBD, COP 10, 2010) at Annex I.7 <www.cbd.int>; Secretariat of the Convention on Biological Diversity Global Biodiversity Outlook 3 (CBD/UNEP, Montréal, 2010) at 17 <www.cbd.int>.
2. Ministry for the Environment Environment New Zealand 2007 (New Zealand Ministry for the Environment, Wellington, 2007) at 353 <www.mfe.govt.nz>; RN Holdaway “New Zealand’s pre­human avifauna and its vulnerability” (1989) 12 (supplement) New Zealand Journal of Ecology 11.
3. For a historical overview of conservation measures in New Zealand see Kerry­Jayne Wilson Flight of the Huia: ecology and conservation of New Zealand’s frogs, reptiles, birds and mammals (Canterbury University Press, Christchurch (New Zealand), 2004) at ch 9.
4. RJW de Nooij and others “Relating the ecological and legal framework for nature conservation in Europe” (2008) 11 Journal of International Wildlife Law & Policy 259; Jonas Ebbesson “Lex Pernis Apivorus: An Experiment of Environmental Law Methodology” (2003) 15 Journal of Environmental Law 153; Arie Trouwborst “Seabird Bycatch — Deathbed Conservation or a Precautionary and Holistic Approach?” (2008) 11 Journal of International Wildlife Law & Policy 293.
5. Richard Oliver Brooks, Ross Jones and Ross A Virginia Law and Ecology: the rise of the ecosystem regime (Ashgate Publishing, Burlington (Vermont), 2002) at 3.
6. Brooks, above n 5, at 2.
7. Ibid.

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... By “regime” we mean the cluster of rules and roles which govern our practices in regard to a given ecosystem. By “ecology” we mean the scientific study of the systematic interdependencies of the biotic and abiotic environment. By “ecosystemic laws” is meant those laws which seem to regulate human activities with explicit awareness of the structure, function and integrity of ecosystems and the biodiversity within those systems affected by those activities. It is our contention that ecology is the central discipline for understanding both a viable environment and the modern threats to that environment.

From the science of ecology we learn the habits and patterns of species and the nature and effect of human activity and development upon these species and aspects of the abiotic environment. Reverse understandings of the impact of species on humans and the abiotic environment is also to be gleaned. Ecology exposes the interconnectedness of the environment and presupposes the need for any regime to understand and express in its purpose, method and content, aspects of that interconnectedness. Modern environmental and conservation regimes are moving towards applying an “ecosystem approach” in response to lessons learned from ecology. Commentators encourage an application of a holistic approach to make those conservation gains, which remain elusive despite rafts of legislation aimed at conservation of species.⁸ Some argue that real gains can only be achieved by institutionalising the concept of ecological integrity through significant transformation of human governance.⁹

In New Zealand a regime has been evolving, which in time is becoming more cognisant of the importance of ecology to the effectiveness of the regime. Provision for ecologically sustainable development and an integrated approach to policy, planning and decision­making are hallmarks of the system.¹⁰ This article will focus upon the extent to which aspects of the regime recognise and protect animal movement in the landscape, the facilitation of which is a key component of ecological integrity.

8. For example, Trouwborst, above n 4.
9. See generally Ronald Engel, Laura Westra and Klaus Bosselmann (eds) Democracy, Ecological Integrity and International Law (Cambridge Scholars Publishing, Newcastle upon Tyne, 2010).
10. David Grinlinton “Contemporary Environmental Law in New Zealand” in Klaus Bosselmann and David Grinlinton (eds) Environmental Law for a Sustainable Society (New Zealand Centre for Environmental Law, Auckland, 2002) at 19; Klaus Bosselmann The Principle of Sustainability: Transforming Law and Governance (Ashgate Publishing, Burlington (Vermont), 2008) at 106.

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2. DISTRIBUTION OF ANIMALS AND CORRELATION WITH PROTECTION

Natural distribution of animals in space and time is a key concern of ecology and one which also represents a significant challenge to an effective legal regime. The concern sits within the wider notion of ecological integrity, a concept which is used to refer to “whole or complete ecosystems, where all components are present and operating in an unimpaired fashion”.¹¹ Westra defines the most important aspects of integrity as “the autopoietic (self­creative) capacities of life to organise, regenerate, reproduce, sustain, adapt, develop, and evolve over time at a specific location”.¹²

Ecological integrity can be distinguished from ecosystem health and full integrity is viewed as being attained “when human actions have little or no influence on sites and when the biological community reflects the influence of ecological, rather than human, processes”.¹³ A key element of a pristine ecosystem is connectivity, whereby dynamic interactions are maintained within and between habitats. Connectivity is also recognised as promoting ecosystem resilience. The ubiquitous presence of humans in the environment is a constant pressure upon the restoration, maintenance or enhancement of ecological integrity. The extent to which any legal regime fosters ecological integrity is a matter for communities and nations to debate and decide.

2.1 Animal Mobility

From science we learn of the astounding variety that constitutes life on earth. Contrast the epic journey of the kuaka bar­tailed godwit Limosa lapponica baueri, with the limited range of a flightless bird such as the takahe Porphyrio mantelli. Research has recently confirmed that the kuaka makes the longest known non­stop migration of any bird, flying over 11,000 kilometres from its breeding grounds in Western Alaska to New Zealand without stopping.¹⁴ In doing so, the bird embodies the extent of the challenge to regulators tasked with designing protective codes. Yet it is only recently, and due to developments in tracking technology, that experts studying the birds have identified breeding grounds in Alaska and staging posts for the northwards migration in the Yellow

11. Marc Schallenberg and others Approaches to assessing ecological integrity of New Zealand freshwaters: Science for Conservation 307 (New Zealand Department of Conservation, Wellington, 2011) at 7.
12. Laura Westra “Ecological Integrity” in Encyclopaedia of Science, Technology, and Ethics

(Macmillan Reference USA, Detroit, 2005) at 574.

13. Schallenberg, above n 11, at 8.
14. Miranda Shore Bird Centre “E7 — a godwit on a mission!” <www.miranda­shorebird. org.nz>.

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Sea. This information has been critical to understanding threats to New Zealand populations posed by international activity such as large­scale reclamations at Saemangeum.

However, it is not only movement on an international scale that needs to be considered. Domestic­scale movements, particularly where cyclical, also pose issues in terms of protective responses. Internal migrants such as ngutu pare wrybill Anarhynchus frontalis, and torea South Island pied oystercatcher (SIPO) Haematopus ostralegus, fly between the North and South Islands of New Zealand on a biannual basis. These movements have recently been the subject of scrutiny in relation to the development of wind farms on the west coast of the North Island and will be discussed further in the context of legal responses.

Movement has a range of drivers; important reasons being food and reproduction. Caughley and Sinclair identify three kinds of movement:¹⁵

1. Local movements — these are movements within a home range and are on smaller scales;
2. Dispersal — movement from the place of birth to the site of repro­ duction, often away from its family group and usually without return to place of birth;
3. Migration — this is movement back and forth on a regular basis, usually seasonally, eg from summer range to winter range and back.

These movements involve a transition from one space to another. The transition may be facilitated by air, land or water, dependent upon the species involved.

Animals have created patterns of movement over millennia, but more recently humans have substantially transformed the environments within which animals move. Examining the extent to which protective mechanisms can respond to key threats and accommodate mobility in the landscape reveals deficiencies.

2.2 Designing Protection for a Moving Target

Environmental law is aimed at shaping human activity to ameliorate or avoid adverse impacts of humans on the environment. Species protection measures such as restrictions upon take, and habitat protection measures such as protected areas, are mechanisms employed by the law to this end. Such measures are

15. Graeme Caughley and Anthony RE Sinclair Wildlife Ecology and Management (Blackwell Scientific Publications, Boston, 1994) referred to in IM Bouwma, RHG Jongman and RO Butovsky Indicative map of the Pan-European ecological network for Central and Eastern Europe: technical background document (European Centre for Nature Conservation, Tilburg (Netherlands), 2002) at 22.

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important tools for conservation management yet have well­recognised limita­ tions, some of which are accentuated by species mobility.

• 2.2.1 Prohibitions on take

The Wildlife Act 1953 provides for the protection and control of wildlife¹⁶ and the regulation of game. Section 3 of the Act provides for all wildlife subject to the Act to be “absolutely protected”, with exceptions set out in schedules. These schedules are the key to ascertaining relative values assigned within and between classes of animals and are calibrated according to perceived value and/or risk. For instance, the black­backed gull Larus dominicanus is the only native bird to fall within the non­protective ambit of sch 5, where it joins other less favoured animals such as the stoat and the green frog.

Unlike the fixed shield of a protected area, species protection is a defence which travels with an animal. However, its reach is limited by the degree of extension of the protection beyond a nation’s boundaries. In some circumstances, international law may work to provide a limited protective umbrella over a species as it moves beyond national boundaries. However, the impact of international law is limited by the extent of agreement between nations and the effectiveness of any associated domestic protection mechanisms. A kuaka may receive the status of absolutely protected in New Zealand yet fall to be consumed as a cultural culinary right in its breeding grounds.¹⁷ Additionally, any form of species protection can be compromised by illegal take, forms of which persist in the New Zealand environment.¹⁸

The second issue which arises for species protection is that of incidental take. The destruction of habitat and associated animal loss affects both mobile and sedentary populations. Increased activity in the landscape by humans intensifies the dangers to mobile animals in the form of collision mortality and disruption of movement.¹⁹ Collision mortality as a result of development

16. “Wildlife” is defined in the Wildlife Act 1953, s 2(1) as: “any animal that is living in a wild state; and includes any such animal or egg or offspring of any such animal held or hatched or born in captivity, whether pursuant to an authority granted under this Act or otherwise; but does not include any animals of any species specified in sch 6 to this Act (being animals that are wild animals subject to the Wild Animal Control Act 1977)”; “Animal” is defined by the Act as: “any mammal (not being a domestic animal or a rabbit or a hare or a seal or other marine mammal), any bird (not being a domestic bird), any reptile, or any amphibian; and includes any terrestrial or freshwater invertebrate declared to be an animal under section 7B of this Act and any marine species declared to be an animal under section 7BA of this Act; and also includes the dead body or any part of the dead body of any animal”.
17. Keith Woodley Godwits: Long-haul champions (Penguin Group NZ, Raupo, 2009) at 129. 18 Ibid; see also “Shorebirds shot in ‘callous’ Kaipara Harbour slaughter” The New Zealand

Herald (14 March 2011) <www.nzherald.co.nz>.

19 Andrew F Bennett Linkages in the Landscape: The Role of Corridors and Connectivity

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is significant and on the rise. Migratory bird losses due to collisions with man­ made structures were estimated at 1.3 million in the 1970s, rising to 4–5 million per year in 2000.²⁰ A significant number of birds is being lost on an annual basis; and as development intensifies, so will the loss. It has been contended that mortality caused by collisions with the human constructed environment is the largest unintended cause of avian fatalities worldwide.²¹ It is also suggested that human perspectives on this problem can be unhelpful, where they fail to recognise the particular sensory ecology of birds and concomitant visual and perceptual constraints.²²

Regulation around this form of incidental take is a little unclear. The High Court decision in Royal Forest and Bird Protection Society v Minister of Conservation established that habitat destruction resulting in incidental killing may equate to a breach of the Wildlife Act 1953, as constituting hunting or killing as defined by s 2 of the Act.²³ Whether this logic can be extended to cover killing as a result of the erection of structures, such as wind farms or dams, has yet to be decided by the courts. Due to this uncertainty, incidental take represents a considerable limitation upon the protection provided by the “absolute” status of protection under the Wildlife Act 1953.

• 2.2.2 Protected areas

In New Zealand the presence of protected areas on Crown and other lands has stemmed the rate of loss of biodiversity in these areas, by rendering such lands less accessible to development and by instituting species and ecosystem management programmes within the protective zones. As a result of the establishment of protected areas throughout the nation, the biogeographical distribution of biodiversity loss is not even. Due to habitat loss and change, driven by a range of agents,²⁴ loss of biodiversity is now more marked on land

in Wildlife Conservation (2nd ed, International Union for Conservation of Nature, Gland (Switzerland), 2003) at 79.

20. UNEP and CMS A Bird’s Eye View on Flyways: A brief tour by the Convention on the Conservation of Migratory Species of Wild Animals (UNEP/CMS Secretariat, Bonn (Germany), 2009) at 21 <www.unep­aewa.org>.
21. Graham R Martin “Understanding bird collisions with man­made objects: a sensory ecology approach” 153 Ibis 239 at 241, referring to RC Banks Human-related Mortality of Birds in the United States (US Fish and Wildlife Service, Washington DC, 1979) and Klem and others “Effects of window angling, feeder placement and scavengers on avian mortality at plate glass” (2004) 116 The Wilson Bulletin 69.
22. Martin, above n 21, at 250.
23. Royal Forest and Bird Protection Society v Minister of Conservation [2005] NZHC 433; [2006] NZAR 265 (HC) at [21]–[22].
24. For a description of threats see RT Kingsford and others “Major Conservation Policy Issues for Biodiversity in Oceania” (2009) 23 Conservation Biology 834; J Innes and others “Predation and other factors currently limiting New Zealand forest birds” (2010) 34 New

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held in private ownership.²⁵ Protected lands are significant and invaluable cornerstones for conservation purposes. A kokako Callaeus cinerea hatched within the margins of a large protected area emerges with a silver spoon in its beak, comparative to less fortunate cousins found in unprotected areas.²⁶

(i) Protected area limitations

Despite this, protected areas have limitations which do not necessarily cater for all ecological prerequisites of species. These limitations include:

a) lack of representativeness of ecosystems;

b) in most mainland instances, and some offshore islands, exposure to mammalian predators, thereby requiring intensive management methods; and

c) ecological fragmentation.

(a) Lack of representativeness of ecosystems

Although in excess of 30 per cent of New Zealand’s land area is located within the public conservation estate, a significant proportion of this land tends to be in high country, and thus productive and biodiversity­rich lowland areas are inclined to be underrepresented on public lands.²⁷ This places much lowland forest, wetland, aquatic and coastal habitat beyond the protective reaches of the conservation estate and with it the threatened species which inhabit the areas. Biodiversity existing beyond the conservation estate ( permanently, temporarily or seasonally) is not bereft of protection.²⁸ Nevertheless, loss of valuable indigenous habitat continues,²⁹ as does pressure from a range of other human­induced threats.

Zealand Journal of Ecology 86; New Zealand Department of Conservation and Ministry for the Environment The New Zealand Biodiversity Strategy (Ministry for the Environment, Wellington, 2000) at 4–8.

25. Wren Green and Bruce Clarkson Turning the Tide? A Review of the First Five Years of the New Zealand Biodiversity Strategy — The Synthesis Report (New Zealand Department of Conservation, Wellington, 2006) at 16.
26. Kokako recovery plans reveal that very few kokako exist beyond managed areas; see, for example, John Innes and Ian Flux North Island kokako recovery plan 1999–2009: Threatened Species Recovery Plan 30 (New Zealand Department of Conservation, Wellington, 1999).
27. Ministry for the Environment Protecting our Places: Information about the Statement of National Priorities for Protecting Rare and Threatened Biodiversity on Private Land (New Zealand Ministry for the Environment, Wellington, 2007) at 3.
28. The Reserves Act 1977, the Resource Management Act 1991 and the Queen Elizabeth the Second National Trust Act 1977 make provision for protection of biodiversity on private land.
29. Green, above n 25, at 16.

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(b) Predators

Mammalian predators are pervasive in the New Zealand environment. Exclud­ ing or managing predators to appropriate levels is the most significant challenge for many avian species management programmes.³⁰

In general, however, for less mobile species with limited ranges, such as the kokako and kiwi, existence within a protected reserve coupled with intensive management systems presents excellent opportunities for recovery of those populations.³¹ Although, the recovery programmes for each bird, and related research, caution that vigilance is required in terms of intensively managing pest predators, as unmanaged agents of decline constitute a significant threat.³² Removal of the intensive management regimes or removal of the animal beyond the managed area will each result in species loss.

In an effort to retain the ecological scale necessary to accommodate moderately mobile animals within a protected and managed environment, contemporary managers in New Zealand have resorted to broad­scale aerial application of 1080 to eradicate opossums. The Department of Conser­ vation views such measures as essential in order to prevent further decline in biodiversity, due to issues of scale and economy. The measures are con­ troversial, with some communities loudly resisting application on grounds of off­target effects and more generalised detriment to the environment.³³

(c) Fragmentation and disruption of movement

Fragmentation of habitat is a well­recognised issue for biodiversity conser­ vationists,³⁴ and is not a concept exclusive to unprotected areas. The scale and location of protected areas may be constrained by opportunity and cost and as such present limitations in terms of catering for the ecological prerequisites of an animal. Bennett argues:³⁵

30. Innes, above n 24; Kerry­Jayne Wilson (ed) The State of New Zealand’s Birds 2008: Special Report; Conservation of Birds on the Mainland (The Ornithological Society of New Zealand, Nelson, 2008).
31. See, for example, Innes, above n 24.
32. Innes, above n 24; Sebastian Holzapfel and others Kiwi (Apteryx spp.) recovery plan 2008– 2018: Threatened Species Recovery Plan 60 (New Zealand Department of Conservation, Wellington, 2008).
33. For example, the 2009 resolution of the Taupo District Council to advocate with central government and appropriate agencies for the abolition of all aerial dropping of 1080 poison forthwith: Taupo District Council “Ariel dropping must stop” ( press release, 1 October 2009) <www.taupodc.govt.nz>.
34. Bennett, above n 19, at 13; Paul Opdam and John A Wiens “Fragmentation, habitat loss and landscape management” in Ken Norris and Deborah Pain (eds) Conserving Bird Biodiversity: General Principles and their Application (Cambridge University Press, New York, 2002) at 202.
35. Bennett, above n 19, at 13.

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Most conservation reserves, even large reserves, are becoming increasingly surrounded by intensively modified environments and in the long term appear destined to function as isolated natural ecosystems.

Unlike the animals which enjoy their sanctuary, the protected areas are static and their boundaries will, more often than not, consist of lines drawn on paper by humans for the purposes of property division. Historical allocation in this manner may fail to take account of important connections such as associations with other areas as foraging grounds, breeding sites or water sources.³⁶

Human­induced fragmentation arises “when disturbance or development reaches a threshold at which habitat continuity is broken”.³⁷ An animal moving through the area for life cycle purposes will have its movement impeded. This disturbance or development can take many forms. It may simply be the edge of the protected conservation estate, with a transition to a production landscape or urban development. Alternatively, it could constitute a hydro dam, a culvert, or other development that acts as a barrier or obstacle. The impact is that the disturbance or development acts to constrain or challenge dispersal of fauna to wider areas. In addition, it has been argued that the advent of climate change may result in an increase of barriers in the landscape, both natural and unnatural.³⁸ A further associated change is the proliferation of renewable energy infrastructure, such as wind turbines located in terrestrial and marine areas, and marine turbines, activities which may create large­scale obstacles in the environment.³⁹

3. RESPONSES

Development and habitat change is pervasive on private land in New Zealand. Where the movement is achieved within a protected area, less likelihood of meeting a human­induced obstacle or disturbance arises, although development pressure to use the public conservation estate for tourism, mining and other commercial activity is growing. Such activity in the conservation estate is managed in part through the concessions process under the Conservation Act 1987. The government is currently reviewing this process and assessing

36. AE Beresford and others “Poor overlap between the distribution of Protected Areas and globally threatened birds in Africa” (2010) 14(2) Animal Conservation 99.
37. Opdam, above n 34, at 204.
38. Robert A Robinson and others “Travelling through a warming world: climate change and migratory species” (2009) 7 Endang Species Res 87 at 91.
39. AD Fox and others “Information needs to support environmental impact assessments of the effects of European marine offshore wind farms on birds” (2006) Wind, Fire and Water: Renewable Energy and Birds 148 Ibis 129 (Suppl s1) at 136.

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opportunity to combine resource consent processes under the Resource Management Act 1991 (RMA) with the concessions process, for significant applications which require dual permitting. The ability of a single process to adequately reflect and incorporate the very different statutory mandates of each regime is a matter of debate. Limiting activity, disturbance and disruption in the public conservation estate should be a key goal for New Zealand biodiversity policy­makers intent on securing the halt of decline. The more heightened scale of loss beyond the public conservation estate supports this stance. For the animals which exist or travel beyond protected areas, there is a need to develop more holistic and effective measures which are responsive to ecological prerequisites. Clearly, however, it is unrealistic to expect to be able to protect all movements or all species, and contemporary systems allow for prioritisation of species⁴⁰ and habitat protection reliant in general terms upon principles of endangerment, although recognition of ecological function is an increasing concern.⁴¹

A key to more effective protection is matching ecological knowledge with spatial planning and regulatory measures. In seeking solutions to this problem Opdam and Wiens urge the construction of an approach whereby a habitat versus non-habitat view of the world is moved away from and replaced by one that “recognises the compositional and structural heterogeneity of entire landscapes”.⁴² They argue that the ability to understand the consequences of human actions “requires a consideration of the spatial texture of habitats, of thresholds in landscape structure, and the ecological and behavioural characteristics of the species of interest”.⁴³ In this way it becomes clear how space is used by animals in the landscape, irrespective of the often arbitrary lines drawn by humans designating ownership or regulating activities. Ecological sustainability can thus be achieved when the landscape structure supports those ecological processes required for the landscape to deliver biodiversity services.⁴⁴

In terms of dispersal, migration and persistence of populations, the main function of the landscape of importance is to provide connectivity and connectedness.⁴⁵ Interruption of a migration route can potentially disrupt important life cycle stages of animals, with significant limiting effects on

40. The Department of Conservation is currently investing in a Species Optimisation Programme, designed to support such decisions.
41. RJW de Nooij and others “Relating the ecological and legal framework for nature conservation in Europe” (2008) 11 Journal of International Wildlife Law & Policy 271.
42. Opdam, above n 34, at 222.
43. Ibid, at 223.
44. Paul Opdam and others “Ecological networks: A spatial concept for multi­actor planning of sustainable landscapes” (2006) 75 (3–4) Landscape and Urban Planning 322.
45. Bouwma, above n 15, at 23.

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population. In New Zealand, a classic example is the development of artificial structures in waterways which impede the passage of migratory fish such as kōaro whitebait Galaxias brevipinnis.⁴⁶ Of the native freshwater fish in New Zealand, over half are diadromous, with life cycles divided between the sea and freshwater.⁴⁷

The ability to understand the ecological and behavioural characteristics of animals is critical in terms of understanding the consequences of human actions. Awareness of local movements, dispersal and migration patterns pro­ vides insight which can be applied to limit impacts. A recent example which highlights the vital importance of knowledge of spatial distribution patterns of birds is that of wind farm developments approved on the west coast of the North Island between Taharoa and Port Waikato.⁴⁸ Prior to the wind farm development, local knowledge and scientific observation suggested that this area of the west coast was an internal aerial migration route for species, although the extent and spatial location of the routes were not well established. Investigations carried out as part of associated resource consent processes, in order to assess potential adverse effects in terms of collision risk, subsequently disclosed the existence of a significant flyway for migrating birds along the west coast and passing through the proposed wind farm sites. Monitoring bird activity in the vicinity of the Hauāuru mā raki Wind Farm Proposal (HMR) site, by applying both modern radar techniques and observation, captured some startling results. The evidence of Richard Seaton given in support of the application by Contact Energy Ltd appended the attached table (see page 197).

The Caucus Statements of the Expert Shorebird Groups filed in relation to the Hauāuru mā raki Wind Farm Proposal⁴⁹ appends trail maps underscoring the significant extent of a hitherto little­documented flyway. The scientific information collated for the purposes of the hearings is clearly vital in terms of understanding the risk of collision, displacement and disruption, but arguably remains subject to limitations. For instance, the experts’ Caucus Statement discloses agreement between the experts that the height at which the birds fly is difficult to estimate, further that it was not always possible to identify flocks or bird species, and smaller migratory species were assumed to be difficult to detect by both radar and observers, therefore South Island pied oystercatchers

46. As considered in Andre v Auckland Regional Council [2002] NZEnvC 301; [2003] NZRMA 42.
47. Cindy Baker and Jacques Boubée “Using ramps for fish passage past small barriers” (2003) 11 Water & Atmosphere 12 <www.niwa.co.nz>.
48. For example, in the matter of an application to the Waikato Regional Council and the Waikato District Council by Taharoa C Incorporation to build and operate a wind farm at Taharoa (2007), and the Final Report and Decision of the Board of Inquiry into the Hauāuru mā Raki Wind Farm and Infrastructure Connection to Grid (May 2011) <www. mfe.govt.nz>.
49. 27 April 2010 and 26 September 2010.

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Table 9. A summary of the species of internal migratory shorebirds recorded as migrating along the Waikato coastline, their threat status, the estimated population size and the number potentially passing through or past the proposed HMR Wind Farm (outlined in the Caucus Statement dated 27 April 2010).

(SIPO) were accepted as a proxy for the number of other species.⁵⁰ Scientific techniques or methods exist to attempt to overcome such limitations, but as with any scientific analysis, knowledge gained cannot be perfect and legal standards of proof will be applied on a case­by­case basis. The Caucus Statement discloses disagreement between the experts in terms of the collision risk analysis. The disagreement between the experts was centred on avoidance rates and the following issues:

1. How accurate the available avoidance rate estimates are for shorebirds;
2. How applicable the ecological situations these rates have been calculated from are to the HMR situation;
3. Whether the ability of birds to avoid turbines differs between night and day;
4. Whether some New Zealand species are less likely to avoid collision with wind turbines; and
5. What level of precaution is appropriate and how it should be applied.

This level of uncertainty and disagreement exposes a significant challenge faced by decision­makers in assessing the ecological impacts of development and in addition introduces the notion of precaution, an aspect recognised as

50. Dowding and others “Caucus Statement of the Expert Group” In the matter of a Board of Inquiry appointed under section 146 of the Resource Management Act 1991 to consider resource consent applications by Contact Wind Limited in respect of the Hauāuru mā raki Wind Farm proposal (27 April 2010), cll 2.3.2, 3.1.3, 3.1.4.

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an important adjunct to decisions made taking an ecosystems approach.⁵¹ But most importantly, the example reinforces the critical need to study and monitor the spatial distribution of animals in space and time prior to the construction of development that may impede that distribution.

In addition to large­scale migration movements, disruption of movement and disturbance in terms of local movements may cause significant impacts upon populations. Development or activity which creates barriers to foraging grounds or removes key foraging areas causes adverse effects upon populations. In order to avoid the impact on species, detailed knowledge of the characteristics of individual species, and distribution and movement patterns in space and time, are critical in terms of then taking steps to restore, maintain or enhance a connected landscape.

It is evident that development of an ecosystemic regime, which provides greater recognition and protection of animal movement in the landscape, is challenged by lack of ecological knowledge and lack of collation and repre­ sentation of that knowledge. A further challenge to such a regime is lack of directive policy and associated regulation. This article will now focus on the latter challenge. It will consider the opportunities afforded by the regime for recognition and protection of animal movement in the landscape.

3.1 Directive Policy and Associated Regulation

• 3.1.1 International

New Zealand is a signatory to the 1992 Convention on Biological Diversity (CBD)⁵² and pursuant to art 6 has an obligation to:

(a) Develop national strategies, plans or programmes for the conservation and sustainable use of biological diversity or adapt for this purpose existing strategies, plans or programmes which shall reflect, inter alia, the measures set out in this Convention relevant to the Contracting Party concerned; and

(b) Integrate, as far as possible and as appropriate, the conservation and sustainable use of biological diversity into relevant sectoral or cross­ sectoral plans, programmes and policies.

In terms of an approach to be taken in these plans and programmes, support for an ecosystems approach can be found in the text of the Convention as

51. Arie Trouwborst “The Precautionary Principle and the Ecosystem Approach in International Law: Differences, Similarities and Linkages” (2009) 18 Review of European Community & International Environmental Law 26; Trouwborst, above n 4.
52. Convention on Biological Diversity (opened for signature 5 June 1992, entered into force 29 December 1993).

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well as in subsequent decisions made by the Parties to the CBD.⁵³ Article 8(d) requires the parties to “Promote the protection of ecosystems, natural habitats and the maintenance of viable populations of species in natural surroundings”. In addition, identification and monitoring obligations imposed by art 7 make reference to categories set down in Annex I, including:⁵⁴

1. Ecosystems and habitats: containing high diversity, large numbers of endemic or threatened species, or wilderness; required by migratory species; of social, economic, cultural or scientific importance; or, which are representative, unique or associated with key evolutionary or other biological processes;

The CBD incorporates an approach which supports conservation measures which are holistic and cognisant of biological and ecological prerequisites of animals. There is no explicit recognition of animal movement, although arguably the “maintenance of viable populations in natural surroundings”⁵⁵ incorporates the need to ensure the continuation of important life cycle or life­ sustaining movements.

The 1979 Convention on the Conservation of Migratory Species of Wild Animals⁵⁶ (CMS) is an additional agreement to which New Zealand is a party. The CMS is concerned with species protection, yet incorporates considera­ tions of habitat and life cycle activities. The Convention brings conservation issues attached to animal mobility to the fore; however, the conservation measures contemplated to protect migratory species extend only to those animals moving between states.⁵⁷ Despite this limitation, the CMS recognises and aims to address problems faced by mobile animals in relation to obstacles in the landscape. In reference to endangered species, art III of the CMS requires Range States to endeavour inter alia:

4. b) to prevent, remove, compensate for or minimize, as appropriate, the adverse effects of activities or obstacles that seriously impede or prevent the migration of the species;

53. Alexander Gillespie Conservation, Biodiversity and International Law (Edward Elgar Publishing Ltd, Cheltenham, November 2011) at 327.
54. Convention on Biological Diversity (CMS), above n 52, at Annex I.1. 55 Ibid, preamble.
56. Convention on the Conservation of Migratory Species (opened for signature 23 June 1979, entered into force 1 November 1983).
57. Article 1 of the CMS defines migratory species as the entire population or any geog­ raphically separate part of the population of any species or lower taxon of wild animals, a significant proportion of whose members cyclically and predictably cross one or more national jurisdictional boundaries.

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Enabling the continued operation of key life cycle patterns is an implicit goal. Recognition of the adverse effects caused by obstacles and barriers in the landscape at international level gives impetus to those managing similar impacts at the local level.

In addition, the CMS recognises the need to understand the ecology and population dynamics of species and further the importance of maintaining “a network of suitable habitats appropriately disposed in relation to the migration routes”.⁵⁸ The CBD, CMS, the Ramsar Convention,⁵⁹ AEWA⁶⁰ and other international conservation­based initiatives have, for a considerable time, fostered the creation of networks of protected areas in order to more fully embrace an ecological approach and overcome limitations of some protected areas. A recent evaluation of the role of critical sites and ecological networks within the CMS framework contemplates the even more ambitious step of using natural corridors such as rivers, mountain ranges and coastlines to protect migratory species along their entire migration route.⁶¹ The AEWA Strategic Plan 2009–2017 includes the “concrete target” of setting up of a “comprehensive and coherent flyway network of protected and managed sites and other adequately managed sites, of international and national importance for waterbirds ... taking into account the existing networks and climate change”.⁶²

For migratory species, protection of flyways has become a key target for a host of conventions, instruments and agencies.⁶³ The term flyways, as used for migratory species, is defined broadly as “the biological systems of migration paths that directly link sites and ecosystems in different countries and continents”.⁶⁴ In this instance, the flyways concept has been used in the international context concerned with birds moving between states. However, it is recognised that flyways occur at different scales and can relate to single

58. Ibid, at art V(5)(f ).
59. Convention on Wetlands of International Importance (opened for signature 2 February 1971, entered into force 21 December 1975).
60. The 1995 Agreement on the Conservation of African­Eurasian Migratory Waterbirds (AEWA), reprinted in Mark Austen and Tamara Richards (eds) Basic Legal Documents on International Animal Welfare and Wildlife Conservation (Kluwer Law International, London, 2000) at 271–276.
61. CMS Secretariat Note on the Potential Role of Critical Sites and Ecological Networks within the CMS Framework (16th meeting of the CMS Scientific Council, Bonn, 28–30 June 2010).
62. UNEP/AEWA Secretariat AEWA Strategic Plan 2009–2017 (UNEP/AEWA, Bonn, 2008) at

6.6.1 Objective 1(1.1) <www.unep­aewa.org>.

63. For a full description of application of the flyway approach in international conventions, instruments and agencies, see UNEP/CMS, above n 20, Table 1 at 42.
64. Gerard Boere and David Stroud “The flyway concept: what it is and what it isn’t” in Gerard Boere, Colin A Galbraith and David Stroud (eds) Waterbirds around the world (The Stationery Office, Norwich, 2007) at 40.

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species migration systems.⁶⁵ It is a concept aimed at delivering protection to species moving on an annual basis between breeding and non­breeding areas.⁶⁶ In summary, it can be seen that at international level there is recognition of

the need to protect endangered mobile animals from barriers in the landscape and endeavour to provide holistic protection that extends to cover movements for life cycle purposes. Translation of this thinking to the New Zealand regulatory environment is the next enquiry.

3.1.2 New Zealand

(i) National policy

In response to the CBD, New Zealand prepared the New Zealand Biodiversity Strategy (NBS 2000), recognising as a core goal particular responsibility for conserving indigenous ecosystems and species. It provides:⁶⁷

Goal Three: Halt the decline in New Zealand’s indigenous biodiversity

Maintain and restore a full range of remaining natural habitats and ecosystems to a healthy functioning state, enhance critically scarce habitats, and sustain the more modified ecosystems in production and urban environments; and do what else is necessary to

Maintain and restore viable populations of all indigenous species and subspecies across their natural range and maintain their genetic diversity.

In attaining this goal, the NZBS 2000 recognises the need to protect habitats and ecosystems and acknowledges the issue of habitat fragmentation. It specifically recognises constraints caused by “gaps in knowledge about ecological processes and restoration techniques (for example, the use of corridors), a lack of incentives, and the shortage of information, practical guidelines, expertise and resources”.⁶⁸ A related objective set down in the NZBS 2000 is to use ecosystem­based methods to map indigenous biodiversity and contemplates developing and implementing effective approaches to map indigenous biodiversity at ecosystem scales and inform management actions and research.⁶⁹

65. Ibid, at 41.
66. Ibid, at 40.
67. Department of Conservation and Ministry for the Environment The New Zealand Biodiversity Strategy (Ministry for the Environment, Wellington, 2000), Part 2 at 4 <www. biodiversity.govt.nz>.
68. Ibid, Part 3 at 41.
69. Ibid, Objective 9.2 at 122.

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In terms of life cycle movements and obstacles, the NZBS 2000 explicitly recognises artificial barriers as an issue for migrating freshwater fish species, and sets the following Objective 2.3:⁷⁰

b) Compile regional inventories of significant artificial barriers to the migration to and from the ocean of indigenous freshwater species and progress priority actions to restore fish passage.

A further action set by the NZBS 2000 was the preparation of a National Policy Statement on biodiversity to provide guidance to local authorities on implementing provisions of the Resource Management Act 1991 relevant to conserving and sustainably managing indigenous biodiversity.⁷¹ Adoption of this process did not immediately find political favour and, in substitution, in 2007 a non­statutory Statement of Priorities was prepared.⁷² The Statement identifies four distinct priorities but does not specifically deal with species movement in the landscape or barriers to that movement. Both the NZBS 2000 and the Statement of Priorities carry no particular statutory weight, although they are matters that can be considered by decision­makers in resource consent processes under the RMA, pursuant to s 104(1)(c). A 2010 review of regional council biodiversity programmes found that implementation of the Statement of Priorities in plans was limited.⁷³

(ii) Resource Management Act 1991

In terms of regulatory approaches, New Zealand lacks dedicated threatened species management legislation, a position which has been criticised in recent commentary.⁷⁴ As previously discussed, the Wildlife Act 1953 protects species from illegal takes, but does not specifically legislate in terms of impacts of human activity on animals. This is more specifically the province of the RMA. Concerns relating to the impact of development and habitat change on private land generally fall within the ambit of the RMA, the central purpose of which is the sustainable management of natural and physical resources as defined by s 5.

70. Ibid, Objective 2.3 at 65.
71. Department of Conservation and Ministry for the Environment, above n 67, Objective 1.1, Action (d) at 41.
72. Ministry for the Environment Protecting our Places: Information about the Statement of National Priorities for Protecting Rare and Threatened Biodiversity on Private Land (New Zealand Ministry for the Environment, Wellington, 2007).
73. Office of the Minister for the Environment “Proposed National Policy Statement on Indigenous Biodiversity: Proposal to release for public consultation” (29 November 2010) CAB (10) 660 at 5.
74. MNH Seabrook­Davison, W Ji and DH Brunton “New Zealand Lacks Comprehensive Threatened Species Legislation: Comparison with Legislation in Australia and the USA” (2010) 16 Pacific Conservation Biology 54.

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In terms of protection of fauna, the legal framework and thus the policy context has attached itself reasonably firmly to the concept of habitat protection. This is due largely to the fact that the RMA by virtue of s 6(c) mandates recognition and protection premised upon “significant habitats of indigenous fauna”.

However, opportunity exists to broaden the habitat focus to one which incorporates considerations of ecological and behavioural characteristics of species. The sustainable management purpose of the Act is defined by reference to provision for future generations, safeguarding life­supporting capacities of resources and ecosystems, and avoiding, remedying and mitigating adverse effects. This provision affords considerable scope to extension of faunal protection beyond the protection of habitat, and this article will explore examples of where such an approach has been followed in New Zealand policy. In addition, a broad definition of the term habitat arguably extends itself to areas which are ecological prerequisites of fauna such as the relationship of birds and airspace.⁷⁵ The Decision of the Board of Inquiry into the Hauāuru mā Raki Wind Farm and Infrastructure Connection to Grid confirms this approach by defining the aerial migratory route as habitat.⁷⁶

The RMA relies upon a governance structure with roles distributed between central government and regional and territorial authorities.

(a) Central government

Central government has responsibility, amongst other things, for making national policy statements (NPSs), water conservation orders and national environmental standards.⁷⁷ Defining policy at a national level is critical in terms of providing for consistent and integrated management of the environment. NPSs are significant instruments, in that other resource management plans are required to give effect to their provisions. It has been the mandatory New Zealand Coastal Policy Statement which has taken the lead in terms of taking an ecosystemic approach and recognising ecological aspects requiring consideration in protective regimes. The New Zealand Coastal Policy Statement 2010 (NZCPS)⁷⁸ specifically deals with the movement of animals in the landscape and in doing so builds upon an approach taken by its predecessor. ⁷⁹ Policy 11 evinces the intention “To protect indigenous biological diversity in

75. Pip Wallace “The Nature of Habitat” (2007) 12 NZJEL 195.
76. Final Report and Decision of the Board of Inquiry into the Hauāuru mā Raki Wind Farm and Infrastructure Connection to Grid, above n 48, at [1204] and [1108].
77. Resource Management Act 1991, s 24(a), (b) and (e).
78. New Zealand Department of Conservation “New Zealand Coastal Policy Statement” (2010) (NZCPS 2010) <www.doc.org.nz>.
79. New Zealand Department of Conservation “New Zealand Coastal Policy Statement” (1994)

<www.doc.org.nz>.

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the coastal environment”.⁸⁰ The Policy directs avoidance of effects of activities on specific groupings in the receiving environment as follows:

To protect indigenous biological diversity in the coastal environment:

(a) avoid adverse effects of activities on:

(i) indigenous taxa that are listed as threatened or at risk in the New Zealand Threat Classification System lists;

(ii) taxa that are listed by the International Union for Conservation of Nature and Natural Resources as threatened;

(iii) indigenous ecosystems and vegetation types that are threatened in the coastal environment, or are naturally rare;

(iv) habitats of indigenous species where the species are at the limit of their natural range, or are naturally rare;

(v) areas containing nationally significant examples of indigenous community types; and

(vi) areas set aside for full or partial protection of indigenous biological diversity under other legislation;

In directing avoidance of effects, Policy 11(a) distinguishes itself in reach­ ing beyond habitat and extending to ecosystems, areas and individual taxa. However, the sub­clause is tempered by its restricted focus upon threatened taxa and ecosystems, or places which are earmarked by rare or significant qualities.

Other areas fall to be dealt with by Policy 11(b), which directs the avoidance of significant adverse effects and avoidance, remedying or mitigating of other adverse effects of activities on:

(i) areas of predominantly indigenous vegetation in the coastal environment;

(ii) habitats in the coastal environment that are important during the vulner­ able life stages of indigenous species;

(iii) indigenous ecosystems and habitats that are only found in the coastal environment and are particularly vulnerable to modification, including estuaries, lagoons, coastal wetlands, dunelands, intertidal zones, rocky reef systems, eelgrass and saltmarsh;

(iv) habitats of indigenous species in the coastal environment that are important for recreational, commercial, traditional or cultural purposes;

(v) habitats, including areas and routes, important to migratory species; and

(vi) ecological corridors, and areas important for linking or maintaining biological values identified under this policy.

80 NZCPS 2010, above n 78, at 16.

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Policies 11(b)(v) and (vi) are specifically directed to matters that implicitly contemplate animal movement and enable a coastal environment where biodiversity movement patterns are recognised and potentially sustained. The concept of habitat in Policy 11(b)(v) is explicitly extended to include areas and routes and arguably therefore contemplates airways. Linking ecological corridors and areas are also incorporated, although a qualifier exists in terms of importance for maintaining biological values identified under the Policy. Whether that qualifier extends to both corridors and areas is unclear, as are the parameters of those values.

Nevertheless, it is the clear intention of the NZCPS to afford protection, in certain circumstances, to areas which support animal movement tied to ecological prerequisites. In doing so it sets the coastal environment,⁸¹ to which it extends, apart from the balance of the New Zealand environment for which no such NPS exists. This creates a policy disjuncture in spatial terms, which fails to recognise the interconnectedness of the environment. Animal movement in the environment is a clear signpost of interconnection, and it presents a direct challenge to the human resource management approach of packaging resources into discrete management units derived from national, regional, local, private or single resource­based mandates of control.

The recent release of the proposed NPS on Indigenous Biodiversity (NPSIB) goes some way to addressing the policy disjuncture; however, the policy approaches are not entirely consistent and the reach of the NPSIB is limited. The NPSIB does not apply to the coastal marine area, leaving biodiversity in that area to be managed in accordance with the policies of the NZCPS.⁸² Both the NZCPS and the NPSIB will apply to that portion of the coastal environment sitting landward of the mean high water springs mark, and there is currently no clear indication as to which would prevail in the event of a conflict. In addition, the draft NPS does not apply to public conservation land and is intended to assist in stemming the loss of biodiversity on private land.⁸³ The restriction to land would appear also to exclude consideration of water bodies and the aquatic ecosystems which inhabit those areas, except where affected by riparian vegetation.⁸⁴

Perhaps due to its general application in terrestrial areas and in deference to the associated regime of private property ownership, the NPSIB tends to hold back from the broader avoidance of effects approach of Policy 11 of the NZCPS, instead applying a more traditional focus on significant vegetation and

81. As defined by NZCPS 2010, above n 78, Policy 1.
82. Ministry for the Environment “Proposed National Policy Statement on Indigenous Biodiversity” (January 2011) (Proposed NPSIB), cl 4 <www.mfe.govt.nz>.
83. Ibid.
84. Ibid, Policy 6(f ).

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the significant habitats of indigenous fauna.⁸⁵ The spatial limits of a significant habitat are unclear, and Policy 1 refers to “an area or habitat whose protection is important for the maintenance of indigenous biological diversity” (emphasis added). In turn, habitat is defined as:⁸⁶

... the area or environment where an organism or ecological community lives or occurs naturally for some or all of its life cycle or as part of its seasonal feeding or breeding pattern.

Argument may persist as to whether this extends to corridors, flyways, buffers or other connective resources, although the decision of the Board of Inquiry in relation to the Hauāuru mā Raki Wind Farm may settle this debate.⁸⁷ These areas do receive some alternative consideration by virtue of Policy 6. Where areas are not defined as significant in terms of Policy 2, the NPSIB states that decision­makers should inter alia:⁸⁸

2. recognise the full range of potential adverse effects on indigenous biodiversity including, but not limited to, population fragmentation, degradation of non­living components (eg, water and soil), interruption to breeding cycles and migratory pathways, and increased exposure to invasive introduced plant and animal species that pose a threat to indigenous biodiversity.
3. encourage the retention of existing vegetation, whether indigenous or not (but not including recognised pest plants), that provides:
   1. habitat for indigenous species
   2. seasonal food sources for indigenous species
   3. ecological linkage between areas and habitats identified in accordance with Policy 4
   4. a buffer to indigenous vegetation for areas and habitats identified in accordance with Policy 4

...

6. encourage the establishment of additional indigenous riparian vegetation as a means of increasing connectivity and enhancing freshwater habitat for indigenous species
7. ensure human­made structures do not adversely impact on indigenous species by interfering with their natural migratory movements

85. Proposed NPSIB, above n 82, Policy 2. Although the focus has been broadened to include other areas identified as national priorities in the Statement of Priorities.
86. Ibid, cl 3.
87. Final Report and Decision of the Board of Inquiry into the Hauāuru mā Raki Wind Farm and Infrastructure Connection to Grid, above n 48.
88. Proposed NPSIB, above n 82, Policy 6.

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Each of these elements looks beyond protection of habitat per se and con­ templates the ways in which animals use space and depend upon elements of the landscape for existence and persistence. These factors represent important augmentations to a strict habitat protection approach to conservation and enable a holistic consideration of the way in which human activity impacts upon biodiversity. Policy 6 is, however, less prescriptive than Policies 2 and 5, which afford protection to significant areas, in that Policy 6 is prefaced by “should” as opposed to “shall” or “must manage”. In this way, wider ecological concerns receive lesser treatment than significant habitats, which are afforded the status of national importance via s 6(c) of the RMA. Whether this is a sensible result in terms of ecological imperatives is a matter which deserves further attention and debate. Despite greater weight being given to significant habitat, it remains open to continue to identify critical pathways, connections and buffer zones as significant, which would circumvent this problem. In addition, s 5(2) of the RMA provides a fallback position, such that in any resource consent application all activity would be scrutinised in terms of adverse effects and safeguarding life­supporting capacities. An impediment in this regard is the lack of ecological knowledge in terms of animal activity in the landscape and the impact of human development upon that activity. The NPSIB attempts to rectify this problem to some degree, by requiring, pursuant to Policy 4, identification and mapping of significant vegetation and habitat, yet such measures are unlikely to extend to important corridors, pathways and connections.

Lack of quantification and depiction of these areas will continue to afflict resource consent applicants and conservation managers alike. Clearly, as recognised by the s 32 RMA report on the NPSIB, there are significant resourcing issues attached to mapping of significant areas⁸⁹ and limitation is pragmatic. To this end, although identification and mapping of significant vegetation and habitat is required, Policy 4 NPSIB does not extend its mapping requirements to the habitat of all threatened and at­risk species, only requiring mapping to the extent of existing information.

The NZCPS and the proposed NPSIB each adopt aspects of an ecosystem approach by recognising the need to consider the structure, function and integrity of ecosystems and how the biodiversity within those systems may be affected by human activities, in a range of different ways. Interestingly, only the NZCPS directs (via Policy 3) the adoption of a precautionary approach towards proposed activities whose effects on the (coastal) environment are uncertain, unknown, or little understood, but potentially significantly adverse. While there may be reasons for this distinct policy approach, the phenomenon of animal mobility does not sit comfortably with this inconsistent approach. A

89. Ministry for the Environment “Proposed National Policy Statement on Indigenous Biodiversity: Evaluation under section 32 Resource Management Act 1991” (2011) at 64.

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bird flight path or a fish migratory path will often extend from the terrestrial to the coastal, yet only in relation to the coastal environment section is a precautionary approach directed. In this light the distinction appears specious; a better approach would be for the NPSIB to adopt a similar position to the NZCPS. Lack of application to aquatic ecosystems in the proposed NPSIB is an additional and significant limiting factor.

Beyond NPSs, at central government level, a water conservation order is an instrument which represents a considerable opportunity to recognise and sustain outstanding amenity or intrinsic values of a water body and/or its characteristics, and thus potentially constrain development activity which impacts on those values. Limitations of the orders are that, like protected areas, they are area­specific and seldom granted for an entire reach of a river.

(b) Local government

Under the RMA, biodiversity is the dual concern of both regional and territorial authorities,⁹⁰ who respectively have the functions of creating regional and district plans to regulate activity in the environment. Regions incorporate larger areas than districts and have boundaries drawn up on lines acknowledging watersheds. Regional focus tends to be upon water and air quality and the coastal marine area as defined by statutory function, whilst territorial authority under the RMA is largely concerned with land use and subdivision. In terms of biodiversity, pursuant to s 30(1)(ga) of the RMA, regional councils are responsible for:

1. the establishment, implementation, and review of objectives, policies, and methods for maintaining indigenous biological diversity:

This is a relatively new function, inserted as from 1 August 2003 by the Resource Management Amendment Act 2003. In addition, s 30(1)(c)(iiia) provides that it is a function of regional councils to control the use of land to maintain and enhance ecosystems in water bodies and coastal waters. In contrast, territorial responsibility is for the control of the effects of land use for the maintenance of indigenous biodiversity.⁹¹ Accordingly, a functional overlap exists in terms of responsibility for biodiversity, and allocation of roles between agencies varies widely according to direction from the Regional Policy Statement.⁹²

90 Resource Management Act 1991, ss 30(1)(ga) and 31(1)(b)(3). 91 Ibid, s 31.

92 Contrast, for instance, Horizons Regional Council “Proposed One Plan” (August 2010) Policy 7.4 with Environment Waikato “Proposed Waikato Regional Policy Statement” (November 2010) Methods 11.1.1 and 11.2.2.

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The Regional Policy Statement is the main directive policy vehicle used by regional authorities to fulfil statutory functions under the RMA. Its power is derived from a recent amendment to the RMA which requires the plans of territorial authorities within the region to give effect to, as opposed to the earlier rendition of to not be inconsistent with, Regional Policy Statements.⁹³

A review of four operative or proposed Regional Policy Statements⁹⁴ revealed that whilst a level of consideration existed in relation to ecological function and integrity, only one contained an issue statement noting loss of linkages and networks in either land, air or water, and identified an issue concerned with encouraging connectivity between remnant habitats to maintain or enhance indigenous biodiversity values.⁹⁵ None of the RPSs contained an objective to avoid network disruption and only one contained an objective to achieve ecological integrity.⁹⁶ Despite this, most contained policy directed to supporting ecological integrity and ecological processes and two contained policy related to maintaining ecological integrity or networks/linkages.

In terms of implementation, two of the RPSs contained directive methods to secure aims related to general ecological integrity and networks, and in addition the Proposed Waikato RPS included guidance/advocacy measures to secure the same aims.⁹⁷ In general, where some form of protection was envisaged which encouraged connectivity, the areas tended to relate to the coastal environment or to the migratory pathways of indigenous fish. This pre­eminence can be explained by specific direction contained in the NZCPS relating to habitats, corridors and routes and the impact of Part 6 (Fish Passage) Freshwater Fishing Regulations 1983. As a result, terrestrial connectivity and flight paths not associated with the coastal environment tended to receive lesser attention.

In terms of a specific requirement to identify significant corridors or ecological connections, two of the RPSs⁹⁸ oblige either regional or territorial authorities to undertake this task. In neither case was the obligation limited by reference to a resource, the use of the terms corridors or areas suggesting that the identification could potentially apply to land, air or water. In addition, each

93. Resource Management Act 1991, s 75(3)(c), as inserted by Resource Management Amendment Act 2005, s 46.
94. Environment Waikato “Proposed Waikato Regional Policy Statement” (November 2010); Taranaki Regional Council “2010 Regional Policy Statement for Taranaki” (January 2010); Horizons Regional Council “Proposed One Plan” (August 2010); Bay of Plenty Regional Council “Proposed Bay of Plenty Regional Policy Statement” (November 2010).
95. Taranaki Regional Council, above n 94, Issue statement 9.1 and Bio Iss 3. 96 Environment Waikato, above n 94, Objective 3.18.
97. Ibid, Methods 11.1.1, 11.1.2, recognition of adverse effects, 11.3.2 advocacy; Bay of Plenty Regional Council, above n 94, Method 49. This finding excludes methods related to fish passage.
98. Bay of Plenty Regional Council, above n 94, Method 49; Taranaki Regional Council, above n 94, Bio Method 2.

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of the RPSs examined contained criteria for significant habitat of indigenous fauna and in three of the four instances the criteria referenced ecological context or connectivity.⁹⁹ On this basis a separate requirement for identification of connections or networks may not be necessary where the connection can be considered significant.¹⁰⁰

The biodiversity methods applied via the RPSs were varied, as were the obligations to be expressed in subordinate regional and district plans. Func­ tional division between territorial and regional authorities ranged widely. An interesting innovation contained in the Proposed Waikato Regional Policy Statement is the requirement for regional councils to collaborate with territorial authorities to develop local indigenous biodiversity strategies (LIBSs).¹⁰¹ These strategies will be developed at district scale and include a range of seminal measures, including development of targets, identification of important threats, opportunities and priorities for restoring, enhancing or re­creating buffers, linkages and corridors, and the mapping of important areas and sites.

The contemplated measures are significantly more comprehensive than what is currently occurring at district level. Certainly, the RPSs examined do not of themselves constitute significant repositories of species information. Inclusion of, or requirement to include or collate, biodiversity information such as a species inventory, distribution map, species target or outcome statement and related monitoring requirements, spatial depiction of significant habitat, identification of threats or baseline data on habitat and ecosystem health and condition was sparse, if not largely absent, in the RPSs reviewed. In contrast to the requirements of a conservation management strategy prepared under the Conservation Act 1987 in relation to the public conservation estate, the measures pertaining to species existing on private land would appear somewhat deficient.

99. Environment Waikato, above n 94, 11A; Bay of Plenty Regional Council, above n 94, Appendix F; Taranaki Regional Council, above n 94, Bio Policy 4; Horizons Regional Council Regional Plan, Schedule E (note: as the Horizons Regional Policy Statement is a unified document, reference has also been made to the Regional Plan).
100. A recent interesting innovation is the intention of the Auckland Spatial Plan to identify nationally and regionally significant “ecological areas that should be protected from development”: Auckland Council Auckland Unleashed — The Auckland Plan Discussion Document (2011) at 5 (emphasis added).
101. Environment Waikato, above n 94, cl 11.1.6.

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4. CONCLUSION

In conclusion, it is apparent that opportunity exists to incorporate considera­ tions of ecological integrity, including animal movement, into regulatory measures designed to conserve biodiversity. Integrated management of the environment requires an integrated policy approach, and one which recognises interconnections in the environment. This article identifies that although national policy options exist to develop a nationally consistent approach, the policies as currently drafted are limited by subject matter and spatial application. As such, they fail to adequately capture and support the notion of ecological integrity in a holistic manner.

At the regional and local scale, protection of ecological integrity could receive further recognition. Including important routes, corridors and path­ ways within the criteria for significant habitat is a simple measure which would enable consideration of these aspects alongside a more traditional view of habitat. Alternatively, identification of ecological areas as promoted in the Auckland Spatial Plan discussion document may provide a broader compass.¹⁰² The inclusion of connections enables a landscape view which incorporates ecological function and integrity. A second step would be to identify and spatially depict and plan for these areas. Mapping or at least notating significant connections such as the wrybill/SIPO flyway immediately identifies sensitive areas in need of consideration and/or protection. The innovation of the local indigenous biodiversity strategy (LIB) provides a regulatory tool which could be used for these purposes as well as other species­related outcomes. The issue needs to be debated as to whether such plans, if they are to be prepared, should occur at regional or district level. For long­range animal movements it is arguable that the regional scale would be preferable.

102. Auckland Council, above n 100.