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Soete, Anemoon --- "Comparing the strategies of the European Union and New Zealand under the Convention on Biodiversity" [2013] NZJlEnvLaw 5; (2013) 17 NZJEL 123

Last Updated: 19 January 2023


Comparing the Strategies of the European Union and New Zealand

under the Convention on Biodiversity

Anemoon Soete*

Both New Zealand and the European Union (EU) have an important impact on global biodiversity, the EU due to its vast territory and ability to bind many countries at once and New Zealand due to its territorial isolation. Since the realisation that biodiversity was suffering badly these parties to the Convention on Biodiversity (CBD) have pledged to nurture their territories’ biodiversity. In this article the various past, present and future efforts and lack thereof of these two parties are examined. In order to fulfil their obligations under the CBD these naturally dissimilar regions showcase different instruments to reach their own specific goals. Whilst New Zealand focuses on the protection of private land and sticks to theories, the European Union’s policy revolves more around public land and a green economy. Despite the countries’ disparities they do have some common demons to fight. Inadequate data can turn the choice of the most appropriate policies and instruments into guesswork. Consequently, different regions within each party tackle the issue with varying standards, leading to a crumbled application of what should have been a guiding and unifying national policy created contemplating the guidelines of the CBD. There is no one-size-fits-all approach here, but it is obvious that parties can learn from each other’s attempts at protection and need to be observed so that action is firmly put on the agenda.

*The author is pursuing a Master’s degree in Law with a focus on international and environ­ mental law at Ghent University. This paper was submitted in the Resource Management Law subject at the Law School, University of Auckland, in June 2013.


1.1 What is Biodiversity?

Biodiversity, or biological diversity, is a way to define the diversity of all known life on earth. Generally assumed, the definition covers genetic diversity, species diversity, and diversity of ecosystems and landscapes, including intrinsic ecological structures and processes. Biodiversity is fragile and regulated by intrinsic and extrinsic factors. Over the last 10,000 years, humans have immensely influenced those factors, turning us into the biggest threat to biodiversity. This means humanity is weakening biodiversity and with it an important resource which provides different functions and services like water cleaning and erosion control. Consequently, biodiversity will not only mean loss of species and genetic resources but also of important services and life­ supporting mechanisms.1

There is no doubt that the time to act on biodiversity loss is today, even though the biosphere would have warranted an earlier date. Even with policy action being taken all over the world, the rates of species extinction are skyrocketing. Essentially due to human activities, species are currently being lost at 100 to 1,000 times faster than nature would normally allow it, throwing our biosphere into an unbalanced state.

The Food and Agriculture Organization (FAO) found 60 per cent of the world’s ecosystems degraded or used unsustainably, 75 per cent of fish stocks overexploited or significantly depleted, and 75 per cent of genetic diversity of agricultural crops lost worldwide since 1990. Every year around 13 million hectares of tropical forests are destroyed, and 20 per cent of the world’s tropical coral reefs have already disappeared, while climate change will only make matters worse.2

In the European Union (EU) only 17 per cent of habitats and species and 11 per cent of key ecosystems protected under EU legislation are in an acceptable state. The EU had nonetheless taken action in 2001 and tried to reach high standards for 2010. Those actions, however, were and are nullified by growing pressures on Europe’s biodiversity such as land use change, overexploitation of biodiversity, and invasive alien species.3 There has also been a shift in matter fluxes, especially in the climate change-inducing carbon dioxide and fertility-

  1. RE Hester and RM Harrison (eds) Biodiversity Under Threat (RSC Publishing, Cambridge, 2007) at 252.
  2. European Commission Our life insurance, our natural capital: an EU biodiversity strategy to 2020 (European Commission, COM (2011) 244 final, May 2011) at 1 [EC Our life insurance].
  3. EC Our life insurance, above n 2, at 1.

changing anthropogenic chemicals such as pesticides and pharmaceuticals.4 On top of that, pollution and climate change are increasing. Indirect drivers, such as population growth, insufficient awareness concerning biodiversity and a lack of respect for biodiversity’s economic value in decision­making are not helping the matter either.5

New Zealand is known as a hotspot for biodiversity because it has half a per cent of all known plant species, but has sadly lost about 78 per cent of its primary vegetation.6 Apart from those numbers, New Zealand has also listed 2,788 species as threatened.7 Unfortunately, for those species and habitats which do remain, the future also looks grim.

1.2 Why Protect Biodiversity?

Biodiversity could help save the one thing needed to cure a thus far incurable disease. It is hard to assess the value of biodiversity, but biodiversity is clearly not to be disregarded. In earlier days biodiversity received the label of common heritage of mankind which meant it was freely accessible by anyone and owned by no one. Unsurprisingly, developing countries saw their resources being taken away and they received next to nothing in return. Modern­day legislation and specifically arts 15, 16 and 19 of the Convention on Biodiversity (CBD) try to amend this unequal situation, though without parting completely from the idea of free access. The countries now have sovereign power over their own resources but they must facilitate access of other member states.8

Before the CBD, other protective agreements took care of fragments of the environment. When protecting biological diversity you are protecting not only all species but also the processes and habitats related to them. This cancels out the habitual fragmented approach of only protecting endangered species.9 Thus, protecting biodiversity works as a preventive measure making sure that the more common species which are not yet in trouble are not forgotten. Secondly, species cannot be adequately protected as separate entities as they are all interdependent and should therefore preferably be protected in connected areas of land.10

4 Hester and Harrison, above n 1, at 259. 5 EC Our life insurance, above n 2, at 1.

  1. MNH Seabrook­Davison “An evaluation of the conservation of New Zealand’s threatened biodiversity: Management, species recovery and legislation” (PhD thesis in Ecology, Massey University, 2010) at 7.
  2. At 3.
  3. William J Snape Biodiversity and the Law (Island Press, Washington DC, 1996) at 205. 9 At 20.

10 At 21.

It must be recognised that biodiversity and its services have, in addition to intrinsic value, great economic value. The Economics of Ecosystems and Biodiversity (TEEB) initiative recommends that the economic value of biodiversity should be incorporated in decision­making and accounting systems.11 In the Conference of Parties (COP) meeting in Nagoya from 18 to 29 October 2010 this conclusion was added as a key action in the new strategy. Naturally it will cost quite a bit to halt biodiversity loss, but biodiversity loss itself will be far more costly for society as a whole. The current decline of bees in Europe is already threatening the 15 billion euro pollination usually produces.12

1.3 Strategic Plan for Biodiversity 2011–2020

In the Biodiversity Outlook 3 the CBD assessed that the goal of halting biodiversity loss by 2010 had not been met. Not only had the objectives not been met, but an even higher loss of biodiversity of genes, species and ecosystems was projected with drastic consequences if certain tipping points were crossed.13 Outside the CBD another assessment, the Millennium Ecosystem Assessment, was made by experts focusing on ecosystem services.14 They came to the same conclusion and said that the rate of biodiversity loss had never been greater in human history.15

Since the failure of the 2010 target, the parties have come up with new CBD goals in the new Strategic Plan for Biodiversity 2011–2020. In that new plan, biodiversity should be conserved and restored, whilst maintaining ecosystem services by 2050. By 2020 all biodiversity loss should have been halted.16

  1. Pushpam Kumar (ed) The Economics of Ecosystems and Biodiversity: Ecological and Economic Foundations (Earthscan, London, 2010) at 3.
  2. EC Our life insurance, above n 2, at 1.
  3. Alexander Gillespie Conservation, Biodiversity and International Law (Edward Elgar, Cheltenham, 2011) at 46 [Conservation].
  4. Rashid M Hassan and others Ecosystems and Human Well-being: Current State and Trends

— Findings of the Condition and Trends Working Group of the Millennium Ecosystem Assessment (Island Press, Washington, DC, 2005) at vii.

  1. Gillespie Conservation, above n 13, at 47.

16 At 133.


2.1 Introduction

The CBD, a United Nations Environment Programme convention,17 was not the first of its kind but it was a new kind of environmental treaty. This law-making text18 came after texts like the World Conservation Strategy of 1980 and the Brundtland Commission’s Our Common Future of 1987. The CBD did not have to start from scratch.19

The CBD deliberately does not just deal with species which have a direct use or attractiveness for humans. Instead the CBD aims for an overall ecosystem protection, recognising the value of the linkages between species.20 The CBD is the first agreement to not only pursue conservation of biological diversity but also sustainable development when using components of that biodiversity.21 The CBD covers pretty much all environmental topics and also literally covers a lot of ground. It comprises everything under the jurisdiction of the member states and that includes their exclusive economic zone and thus marine protection.22 It is clear that international law tends to get more and more involved with national environmental issues.23

The CBD indirectly takes on a holistic approach in its preamble since it recognises the interdependence of the entire world and humanity.24 The CBD is in fact also a sustainable trade agreement since it deals with trade in “genetic resources”. It wants to make sure that not only trade but the overall production process is sustainable. Hence the CBD joins the economic and the environmental.25

On this topic the CBD specifies that countries should take measures to protect customary resource uses and local and indigenous communities’

17 Patricia Birnie, Alan Boyle and Catherine Redgwell International Law and the Environment

(3rd ed, Oxford University Press, Oxford, 2009) at 68.

18 At 15.

  1. Natalie P Stoianoff Accessing Biological Resources: Complying with the Convention on Biological Diversity (Kluwer Law International, The Hague, 2004) at 33 [Accessing Biological Resources].
  2. Malgosia Fitzmaurice, David M Ong and Panos Merkouris Research Handbook on International Environmental Law (Edward Elgar, Cheltenham, 2010) at 519.
  3. Stephen McCaffrey and Rachael Salcido Global Issues in Environmental Law (West, St Paul, 2009) at 179.
  4. Michael Bowman, Peter Davies and Catherine Redgwell Lyster’s International Wildlife Law (2nd ed, Cambridge University Press, Cambridge, 2010) at 595.
  5. Birnie and others, above n 17, at 9.
  6. At 8.
  7. Snape, above n 8, at 202.

sustainable traditional knowledge and practices.26 The challenge is to put these ideas into practice as modern­day trade mostly has little interest in environmental biodiversity protection and sustainable development.27

As a framework convention, the CBD contains a lot of vague and broad obligations boasting words such as “likely to”, “as far as possible”, “significant”, which weaken the text. Alas, this is the outcome of dealing with a great number of parties who need to agree. To help governments a bit with the CBD’s vague phrasing,28 the COP tries to work out guidelines29 such as the Addis Ababa Principles and Guidelines for the Sustainable Use of Biodiversity.30

2.2 Reports, Monitoring and Liability

What does the CBD have up its sleeve when parties ignore their obligations?31 The obligations to be fulfilled under art 8 are to be monitored says art 7 of the CBD, but the states are not obliged to take on independent inspectors for that.32 The fact that the states themselves monitor is a definite weakness, just as the fact that states themselves make their national reports which are to be sent to the COP.

Bearing in mind the soft expression of the obligations of the CBD, this convention is unfit for harsh punitive measures as it would be impossible to find clear boundaries as to when to apply punishment. Complaint procedures are also not available under the CBD. Rather the CBD tries to bring international overview and complaints into the picture under the label of “common concern of mankind”, giving all an interest to defy a policy which is destructive for biodiversity. On the other hand, the CBD applauds the usage of incentives, based on market and non­market value of biological diversity at international and national level, to steer parties’ behaviour.33 The main idea is that positive incentives should be linked to the total economic value of biological resources, and incentives distorting this value should be discouraged.34

Those kinds of complaints can be based on the reports the parties hand in under art 26 on the measures they have taken to fulfil their obligations.35 The reports must be national and thematic. The national part touches upon

26 At 202.

27 At 203.

  1. McCaffrey and Salcido, above n 21, at 180.
  2. Bowman and others, above n 22, at 597.
  3. Secretariat of the Convention on Biological Diversity Addis Ababa Principles and Guidelines for the Sustainable Use of Biodiversity (CBD, Montreal, 2004).
  4. Birnie and others, above n 17, at 636.
  5. Bowman and others, above n 22, at 604.
  6. Birnie and others, above n 17, at 637.
  7. Gillespie Conservation, above n 13, at 115.
  8. Snape, above n 8, at 82.

the implementation in the member state. The thematic part runs through the different topics dealt with by the CBD.36 How honestly these measures and their effectiveness are presented is, however, unclear. On top of that, the CBD gives no assurances when it comes to dispute settlement. The only compulsory method of resolving issues is negotiation with an option of going to third­party arbitration or the International Court of Justice (ICJ).37

When it comes to liability and responsibility the CBD does not do much more in art 14.1 than reiterate the customary law obligation to inform other states immediately in case of danger originating from its jurisdiction to biodiversity in areas beyond its own jurisdiction. Under art 14.2 the COP is to investigate the issue of liability and redress for damage except where such a liability is a matter of internal affairs. Again this article does not sound very promising.38

As usual in environmental treaties, the governance of the CBD depends a lot on other entities such as NGOs, industry and civil society.39 When the CBD cannot handle an issue on its own, it tries to team up with organisations that do tackle the issue successfully.40 The CBD also influences others, such as the policy of the International Finance Corporation (IFO), the private finance branch of the World Bank. The IFO will not finance new business activities which do not comply with the CBD.41 The efficiency of the application of the prerequisites, however, does not seem to matter much when considering that the IFC helped fund the pulp mill on the river Uruguay42 which has become infamous because of the Pulp Mills on the River Uruguay case.43

The CBD also feels strongly about participation of and cooperation between its own members and urges them in this direction by working with trust funds, a clearing­house mechanism,44 technology transfer provisions and, specifically for the CBD, providing economic benefits to developing countries.45 But then again, ultimately the success of the CBD does rely on the ( political) willingness of the parties46 to take on their obligations in an efficient manner and to collaborate with others.47

  1. Gillespie Conservation, above n 13, at 424.
  2. Birnie and others, above n 17, at 639.

38 At 639.

39 At 46.

40 At 75.

41 At 80.

42 At 81.

43 Pulp Mills on the River Uruguay (Argentina v Uruguay) (Judgment) [2010] ICJ Rep 14. 44 Bowman and others, above n 22, at 616.

  1. Birnie and others, above n 17, at 94.
  2. McCaffrey and Salcido, above n 21, at 180.
  3. Birnie and others, above n 17, at 648.

2.3 Text of the CBD in General

The three overarching goals of the CBD are conservation of biological diversity, sustainable use of biological resources, and the access to and fair and equitable sharing of benefits of genetic resources and access to technology.48 In dealing with these topics it constantly seeks an equitable balance between developed and developing countries.49

The CBD transforms these three general principles into obligations in its articles. The content of the articles ranges from conservation and sustainable use of biodiversity50 and its components both in situ51 and ex situ,52 offering incentives for good conservation and sustainable use,53 research and training,54 public awareness and education,55 assessing project­related impact on biodiversity,56 regulating access to genetic resources,57 access to and transfer of technology,58 all the way to providing financial resources.59

In 2008 the parties to the CBD concluded that climate change considerations must be implemented into each relevant programme of work, particularly focusing on the implementation of large ecological networks and ecological corridors.60 Globally the CBD wants to establish an effectively managed, ecologically representative global system of protected area networks.61

2.4 Text of the CBD in Depth

The preamble points out the intrinsic, ecological, genetic, socio­economic, scientific, educational, cultural, recreational and aesthetic value of biodiversity.62 The preamble also wields principles such as a precautionary approach and

48 At 612.

49 At 616.

  1. United Nations Convention on Biological Diversity 1760 UNTS 79 (opened for signature 5 June 1992, entered into force 29 December 1993), art 6.
  2. Art 8.
  3. Art 9.
  4. Art 11.
  5. Art 12.
  6. Art 13.
  7. Art 14.
  8. Art 15.
  9. Art 16.
  10. Art 20.
  11. Gillespie Conservation, above n 13, at 360.

61 At 135.

62 Birnie and others, above n 17, at 618.

intergenerational equity and it stresses the needs of developing countries and affirms the description of biodiversity as a “common concern”.63

Even though the preamble to the CBD recognises conservation of biological material as a “common concern” it does not classify it as “common heritage”. The label of common concern makes it possible to maintain sovereign rights over genetic resources within sovereign boundaries. This attitude is also further expressed in the CBD articles.64 Counterbalancing that attitude, proposed projects and plans which are likely to have significant deteriorating effects on biodiversity must be closely scrutinised by using environmental impact assessments to evaluate the possible damage they could do.65 Secondly, the jurisdictional scope of the CBD stretches beyond national borders and implies that no harm must be done to the environment of other states, confirming that obligations also constrain national sovereignty.66

The CBD seeks equity both towards future generations as towards developing countries in economic matters concerning biodiversity.67 When considering intergenerational equity, we cannot avoid the topic of climate change. It poses a problem for intergenerational equity as a legal obligation both for national and international bodies because the current generation might not be able to pass on the biological biodiversity as it exists today.68

Special attention is given to equity for developing countries. It is mostly achieved by monetary funds including the Global Environmental Facility and other similar institutions. Equity is also reached by access to the benefits obtained from the usage of their own genetic resources by others,69 transfer of technology, and the recognition of the principle of common but differentiated responsibilities.70

By including guidelines on transfer of technology, the CBD took on a very delicate point.71 The transfer of technology brings with it the issue of intellectual rights and involves private organisations and patent rights.72 The problem with patent rights is that they tend to protect the one who invented something. This means that the one providing the raw material to make such an invention often remains unrecognised. The latter is in this context usually a developing country, not getting the benefits it should from its own genetic

63 At 619.

  1. Gillespie Conservation, above n 13, at 502.
  2. Fitzmaurice and others, above n 20, at 535.
  3. Birnie and others, above n 17, at 620.

67 At 56.

  1. McCaffrey and Salcido, above n 21, at 36.
  2. Birnie and others, above n 17, at 55.

70 At 56.

  1. Alexander Gillespie “Biodiversity, Indigenous Peoples and Equity in International Law” (2000) 4 NZJEL 1 at 5 [“Biodiversity”].
  2. Stoianoff Accessing Biological Resources, above n 19, at 36.

resources.73 The CBD recognises this issue in art 16 but leaves it to national policy to find a satisfactory solution.74

The core obligations of the CBD can be found in arts 6, 8 and 9 which deal with in situ and ex situ conservation and sustainable use. Ex situ conservation refers, simply put, to conservation of biodiversity outside of its natural habitat, whilst in situ obviously refers to the conservation in the natural habitat.75 Article 9 is clearly subordinate to art 8. In situ conservation is preferred by the CBD.76 Article 6 talks about the way of implementing the CBD. This happens through a national plan and strategies at all national levels. When making a plan or strategy, member states must do so with an ecosystem approach, meaning that policies on land, water and living resources should be integrated.77 The parties to the CBD have created 12 principles78 to help them take on such an


The biggest issues in the aforementioned articles are clearly the financing of developing countries,80 the threat of alien species,81 and the cautiously mentioned role of indigenous peoples.82 Another sore point is the one touching upon living modified organisms (LMOs) and biosafety, mentioned in art 8(g). Even though key in the Convention, the CBD itself does not offer real guidance on the matter and the parties are to turn to guidelines of the Food and Agriculture Organization, Organisation for Economic Co­operation and Development, United Nations Industrial Development Organization and World Trade Organization (WTO) policies83 or the separate Cartagena Protocol on Biosafety.84

Having ascertained that arts 6, 8 and 9 are the heart of the CBD, we shall now take a closer look at how two very different parties, the European Union and New Zealand, have interpreted their obligations under those articles specifically in the form of their national plans or strategies which are always custom­made by each member state.

73 At 37.

74 At 38.

  1. Birnie and others, above n 17, at 622.
  2. Bowman and others, above n 22, at 599.

77 At 603.

78 “Principles” Convention on Biological Diversity <>. 79 Gillespie Conservation, above n 13, at 483.

80 Birnie and others, above n 17, at 623.

81 At 625.

82 At 626.

83 At 628.

84 At 640.


3.1 Introduction

As a CBD member state the EU as an institution has made a “national” strategy as required by art 6 to implement the obligations under the CBD. Both on global and European levels it was recognised that the 2010 biodiversity target to halt biodiversity loss had not been met. Efforts had been made nonetheless, especially via Natura 2000, the largest network in the world of protected areas. After that revelation the EU seems to want to redeem itself with its new national strategy, the EU Biodiversity Strategy to 2020.85 The EU plans to develop a more resource-efficient economy and cost-effective alternatives to mitigate climate change, do more research and innovation to tap into what biodiversity has to offer industry, and create a large­scale green economy bringing more jobs with it. TEEB noted that global industries could get back 2

to 6 trillion USD by 2050 by investing in biodiversity.86

Wanting to sustain the new policy and make it workable, the EU puts a big emphasis on research, including research on ecosystem services assessment. Firstly, the EU wants to incorporate scientific knowledge into its strategy, and more importantly it wants to see the policy constantly updated. Secondly, there is also a platform called the Biodiversity Information System for Europe (BISE) for the parties so they can share knowledge. Thirdly, the EU is also keen on cooperation with the Intergovernmental Science­Policy Platform on Biodiversity and Ecosystem Services (IPBES) to connect all environmentally related conventions. Lastly, but importantly, the EU wants to streamline its vast pre­existing environmental legislation to adapt it to the CBD.87

3.2 The EU Biodiversity Strategy to 2020

The 2020 Biodiversity Strategy contains six targets responding to the objectives to halt biodiversity loss.88 Target 1 wants to fully implement and accordingly reach decent conservation status of habitats and species in the Birds89 and Habitats Directives.90 Target 2 wants to reduce land fragmentation and restore ecosystems and their services. This will, inter alia, ensure better connectivity

85 EC Our life insurance, above n 2, at 2. 86 At 3.

  1. At 4.
  2. At 4.
  3. Directive 2009/147/EC on the conservation of wild birds [2009] OJ L20/7.
  4. Directive 92/43/EEC on the conservation of natural habitats and of wild fauna and flora [1992] OJ L206.

between Natura 2000 sites.91 Target 3 seeks to implement biodiversity standards further into other policies concerning agriculture and forestry. Target 4 wants to completely implement the sustainable use of fisheries.92 Target 5 will combat alien species. Target 6 is aiming to avert global biodiversity loss and is in this way expanding beyond EU borders in making an effort. To achieve these international biodiversity goals, the EU will strive towards a more green economy and plans to implement the Nagoya Protocol on Access and Benefit- sharing.93 In general the EU must rethink its resource mobilisation and better spread funding so as to maximise co-benefits of various funding sources94 and tap into funding received by the EU Emissions Trading System (ETS) and private funding. Lastly, in view of previous agricultural policies,95 harmful subsidies must be reformed.96

The baseline is that the EU is there to help its member states reach their internationally accepted biodiversity goals. The EU sees itself as a partner of its own member states. Their legislation will be coordinated and unified and the European Commission (the Commission) will play a supportive and gap-filling role. The Commission will also take on the role of overseer and following up on the strategy. This is why the strategy will be reviewed in 2014.97

3.3 Implementation and Instruments

Basically the EU Biodiversity Strategy to 2020 wants to not only halt but reverse biodiversity loss and make room for a green economy in the EU98 through integration of policies and cooperation both regionally and internationally as was pointed out in the seventh EU Environment Action Programme in 2012.99 To convert that perfectly worded policy into action, the EU has created a supporting framework for monitoring, assessing and reporting, the EU Common Implementation Framework (CIF). In this framework it brings

  1. EC Our life insurance, above n 2, at 5. 92 At 6.
  2. At 7.
  3. European Community Fourth National Report of the European Community to the Convention on Biological Diversity (European Community, National Report to the CBD, May 2009) at 49 [EC Fourth National Report].
  4. Alan Matthews “Delivering environmental benefits through agri-environment schemes” (3 May 2012) CAP Reform <> .
  5. EC Our life insurance, above n 2, at 9. 97 At 10.
  6. At 1.
  7. Council of European Union Conclusions on setting the framework for a Seventh EU Environment Action Programme (Council of European Union, 11 June 2012) at 3.

together the European Commission, the EU member states, key stakeholders and civil society.100

When looking at CIF, we must remember that the EU is not a brand­new institution, meaning that it already has a great deal of legislation dedicated to the environment and biodiversity in particular. The European Union already has many directives to partly carry out its Biodiversity Strategy and action plans. Existent EU legislation with the biggest focus on biodiversity protection consists of the Birds Directive and the Habitat Directive, including the Natura 2000 Network.101

Before the term biodiversity was coined at some point in the 1980s, there were already attempts to conserve nature. The trigger for conservation, however, differed greatly from the one today. In the romantic age the focus lay on the aesthetic value of nature, bringing national parks into existence. At the beginning of the 20th century the support for national parks remained but was then based on the human need for natural landscapes and moral education.

Not disregarding the environmental value due to long maintenance of the parks, this does mean that many national parks exist because of their aesthetic qualities rather than their qualities for biodiversity conservation. Today, however, national parks have luckily found their way into the biodiversity conservationists’ toolbox as a true means of conservation.102 As previously mentioned, the world did not wait for the CBD to start making biodiversity conservation policies.103 Most of these policies and action plans still exist nowadays and they have become an aid to the CBD.

At international level the Ramsar Convention on Wetlands,104 the Chicago Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES),105 the Bern Convention on the Conservation of European Wildlife and Natural Habitats106 and the Bonn Convention on the Conservation

  1. EC Fourth National Report, above n 94, at 1. 101 Hester and Harrison, above n 1, at 122.

102 At 193.

  1. Jonathan Baert Wiener and others The Reality of Precaution: Comparing Risk Regulation in the United States and Europe (RFF Press, Washington DC, 2011) at 212.
  2. Ramsar Convention on Wetlands (opened for signature 2 February 1971, entered into force 21 December 1975); “About the Ramsar Convention” Ramsar <>.
  3. Chicago Convention on International Trade in Endangered Species of Wild Fauna and Flora (opened for signature 3 March 1973, entered into force 1 July 1975).
  4. Bern Convention on the Conservation of European Wildlife and Natural Habitats (opened for signature 19 September 1979, entered into force 1 June 1982); “Convention on the Conservation of European Wildlife and Natural Habitats” Council of Europe <http://> .

of Migratory Species of Wild Animals107 all played a role. Even though the EU as an institution is not always a member of these treaties, the European member states are usually parties and so the EU also takes measures to implement principles of the treaties in its own policy.108

At regional level the Pan­European Biological and Landscape Diversity Strategy (PEBLDS)109 was established in 1994 by the Council of Europe and the United Nations Environment Programme to steer member states towards a more unified approach to the implementation of the CBD. The first Environmental Action Programme for Europe was launched in 1973, the Birds Directive in 1979 and the Habitats Directive in 1992. Adhering to the CBD, the EU came up with a biodiversity strategy in 1998,110 based on a policy of incorporating biodiversity concerns in sectoral policies. To implement that strategy, four Biodiversity Action Plans were adopted in 2001, on the conservation of natural resources, agriculture and fisheries, and on economic and development cooperation. In 2006 the European Commission also published a policy communication on biodiversity.111 In 2009 the Commission adopted Directive 2009/28/EC on the promotion of the use of energy from renewable sources recognising the detrimental effects of biofuel on biodiversity.112

With the Habitats Directive came the Natura 2000 network, the pride and joy of Europe’s biodiversity conservation, even though the network has had to deal with strong local opposition in parts of Europe.113 Natura 2000 consists of a network of protected sites protecting both natural habitats and vulnerable species in the EU. It protects via Special Areas of Conservation (SACs) designated under the Habitats Directive114 and Special Protection Areas (SPAs) designated under the Birds Directive.115 The idea is to maintain or improve the habitats and species in the SACs and SPAs and achieve a “favourable conservation status”. This is attained when the natural range and areas covered are stable or increasing, the specific structure and functions necessary for long-

  1. Bonn Convention on the Conservation of Migratory Species of Wild Animals (opened for signature 23 June 1979, entered into force 1 November 1983); “Introduction to the Convention on Migratory Species” Convention on Migratory Species <>.
  2. Ludwig Krämer EU Environmental Law (7th ed, Sweet & Maxwell, London, 2011) at 198. 109 “Pan­European Biological and Landscape Diversity Strategy” PEBLDS <www.peblds.


  1. Evanson C Kamau and Gerd Winter (eds) Genetic Resources, Traditional Knowledge and the Law: Solutions for Access and Benefit Sharing (1st ed, Earthscan, London, 2009) at 399.
    1. Hester and Harrison, above n 1, at 148.
  2. Directive 2009/28/EC on the promotion of the use of energy from renewable sources [2009] L140/16 at [78].
  3. Hester and Harrison, above n 1, at 149.

114 At 148.

115 At 149.

term maintenance exist and are likely to continue to do so for the foreseeable future, and the conservation status of the species is favourable on a long­term basis.116 The costs for maintaining the areas are carried by the member states, but there is also a fund, LIFE, in place to support some measures.117

The CBD is furthermore supported by European policies which highlight parts of the CBD in their own area of focus. The European Water Framework Directive (WFD) aims to improve the state of polluted waters and ensure the sustainable use of water resources. The implementation takes place according to locally developed River Basin Management Plans by using ecological criteria.118 The Common Fishery Policy (CFP) tries to achieve sustainable marine ecosystems and avoid overexploitation119 by implementing Maximum Sustainable Yield (MSY) to achieve a good environmental status, as required under the Marine Strategy Framework Directive.120 Publicly owned forests and forests of a certain size funded by the EU Rural Development Policy are all to be brought under Forest Management Plans in line with Sustainable Forest Management (SFM). The Forest Law Enforcement, Governance and Trade Action Plan (FLEGT) tries to reduce the import of illegally logged timber.121 Finally, the WTO agreements too can have a great influence on agricultural policies and on the European Common Agricultural Policy (CAP) and therefore also on CBD implementation. Sadly the WTO Dispute Settlement Body does not often rule in favour of the environment, giving priority to economic considerations.122

CAP is a very relevant policy, considering the past harmful subsidising policy of the EU in the agricultural sector123 and the fact that there is no direct regulation for land use and soil protection.124 All in all the European land managers are providing insufficient environmental goods and an overload of environmental ills. The European policy responses are grossly inadequate to

116 At 123.

  1. Jan Hebberecht “Grensoverschrijdende ecologische netwerken binnen de Europese Unie

— Het geschikte forum voor de rechtsbescherming van Europese biodiversiteit?” (Master’s thesis in het Notariaat, Ghent University, 2012) at 27.

  1. Directive 2000/60/EC establishing a framework for Community action in the field of water policy [2000] OJ L327/1.
  2. Hester and Harrison, above n 1, at 196.
  3. Directive 2008/56/EC on establishing a framework for Community action in the field of marine environmental policy [2008] OJ L164; EC Our life insurance, above n 2, at 6.
  4. European Commission Forest Law Enforcement, Governance and Trade Action Plan

(European Commission (COM (2003) 251 final, May 2003); Krämer, above n 108, at 183. 122 United States — Import prohibition of certain shrimp and shrimp products WT/DS58/R,

15 May 1998 (Report of the Panel) at [8.1]; United States — Prohibition of imports of tuna and tuna products from Canada L/5198, 22 February 1982 (Report of the Panel) at [4.10].

  1. Peter Clough Encouraging Private Biodiversity — Incentives for Biodiversity Conservation on Private Land (New Zealand Treasury, Working Paper 00/25, December 2000) at 9.
  2. Krämer, above n 108, at 184.

amend this.125 The CAP utilises the new European Agricultural Fund for Rural Development which also affects large areas and their potential for biodiversity conservation under the CBD. Whilst remaining mostly under the radar of the Biodiversity Strategy, it is worthwhile considering the Agri­Environment Schemes (AESs).126 These schemes pay farmers to enhance environmental benefits, including biodiversity, and avoid using environmentally damaging production techniques. The EU spends about 5.5 billion euro per year on those schemes.127

When synthesising policies, existing instruments can also be lent to one another. When the EU combats climate change with its comprehensive EU policy package, then those actions can also have a beneficial effect on biodiversity. The same is true for substantial EU legislation which is trying to reach good ecological status for water and marine ecosystems. Naturally, pre-existing legislation will not suffice. That is why the Commission is looking into creating legislation on nitrogen and phosphate pollution and certain atmospheric pollutants, and the member states might be taking on a proposal for a framework directive to protect soil.128

The EU focuses heavily on interconnectivity and knowledge­sharing. Therefore it has formed several partnerships to bring focus groups together. Leading businesses are brought together in the EU Business and Biodiversity Platform. On spatial planning and land use management the collaboration between researchers and other stakeholders is encouraged. At all levels of policy­making civil society is included as much as possible. The Biodiversity and Ecosystem Services in Territories of the EU Outermost Regions and Overseas Countries and Territories Programme (BEST) will be used to promote biodiversity conservation overseas. The EU also tries to improve collaboration with like­minded conventions. These partnerships have the added bonus of raising awareness more and bringing the issues to the attention of a larger audience.129

  1. Allan Buckwell and others “Risk Task Force on Public goods from private land” (research paper for Rural Investment Support for Europe, 2009) <> at 6.
  2. “Agriculture and the environment: Introduction” European Commission (7 March 2012)

<> .

  1. Nick Hanley and others “How should we incentivize private landowners to ‘produce’ more biodiversity?” (Economics Discussion Paper, Stirling Management School, 2012) <http://> at 3.
  2. EC Our life insurance, above n 2, at 7. 129 At 8.

A new strategy needs a new implementation plan. This is why CIF was devised and accepted in 2012. In formulating this framework the Commission allowed itself to be led by previous implementation strategies in the same field of expertise, as well as by existing implementation frameworks of other policy areas. Holding the principle of cooperation in high regard, various stakeholders were included in the thinking process. The Commission also took a look at the up­ and downsides of existing fora. The screening process led to the conclusion to try to minimise the creation of superfluous working groups by utilising existing ones where possible and by making some fora temporary. As a general principle the Commission believes all working groups should be open to stakeholders where legally possible and groups should be represented by experts in their respective fields of work.130

Within CIF structure there will be various cooperating groups. The highest in the hierarchy is the Biodiversity and Nature Directors’ meeting. They are to guide the implementation work and provide an informal forum for open discussion on priority issues. They can set priorities for any biodiversity and nature policy issues that fall under their authority. If they do not have the authority they can only make recommendations.131

Next in line is the Co­ordination Group for Biodiversity and Nature (CGBN). They are the heart of CIF. They are the operational group busy with actual implementation of the Biodiversity Strategy. Primarily they review and integrate the results of the technical Working Groups. They are also the ones who will make decisions on financing and communication, and will look at the outcomes of monitoring, assessing and reporting. Furthermore, they will make their own views known to the Biodiversity and Nature Directors and form the link between the Directors and the Working Groups. Lastly, the CGBN is the forum for exchanging information and national experience on the process of revising national biodiversity strategies, as required under the global Strategic Plan for Biodiversity 2011–2020.132

Thirdly, there are permanent and ad hoc Working Groups. Some will assist the Commission and others will actively implement plans.133 Per target in the Biodiversity Strategy there are a number of dedicated core groups and relevant fora.134

  1. Patrick Murphy Common Implementation Framework — Orientations (European Commission, 2012) <> at 2.
  2. At 3.
  3. At 4.
  4. At 5.
  5. At 8.

Diagram 1: Patrick Murphy Common Implementation Framework — Orientations (European Commission, background paper outlining the proposed structure for effective delivery of the EU Biodiversity Strategy, 2012) at 10.



3.4 Future Vision

There are a number of reasons why the 2010 biodiversity goals were not met. Commonly, issues arose when the time came for integration of the objectives in EU member states’ policies.135 Even with the European Biodiversity Strategy, each member state still has to create its own concrete national plan as a CBD member.136 Since the implementation of European legislation occurs at a national or district level the degree of implementation can vary tremendously between countries,137 which is why initiatives to increase uniformity must be encouraged.

Even when there is guidance available from the EU for implementation, it is often not enough to know which measures will be efficient. Despite the increasing amount of information on biodiversity, mostly acquired by non­ governmental organisations (NGOs), there are inadequate data available. The implementation of biodiversity indicators in Europe is an improvement but not a remedy since it only focuses on bird species. The Red List Index138 takes on more species, but still only sticks to those that are well known. Hester and Harrison believe there ought to be a network of a limited but carefully selected number of sites needed for intensive observation of a wider range of taxa.139 The network would also serve as a link between scientists, policy­makers and other stakeholders to bring them closer together. This way, research results will turn into actions much quicker.140

When comparing the strategy for 2020 with the one prepared for 2010 there are many similarities to be found. The differences are found in the mindset in which the issue is approached. The Environmental Impact Assessment (EIA)141 and Strategic Environmental Assessment (SEA),142 still very much in existence, have been left out of the front lines of the new Strategic Plan. The same has happened to the Environmental Liability Directive (ELD)143 and the explicit

  1. Hester and Harrison, above n 1, at 123.

136 At 197.

137 At 123.

  1. International Union for Conservation of Nature and Natural Resources “IUCN Red List of Threatened Species” (February 2012) IUCN Red List <>.
  2. Hester and Harrison, above n 1, at 154.

140 At 155.

  1. Directive 85/337/EEC on Environmental Impact Assessments [1985] OJ L175.
  2. Directive 2001/42/EC on the assessment of the effects of certain plans and programmes on the environment [2001] OJ L197.
  3. Directive 2004/35/EC on environmental liability with regard to the prevention and remedying of environmental damage [2004] OJ L143/56; EC Fourth National Report, above n 94, at 28.

mentioning of the polluter­pays principle.144 Neither one of the strategies, however, pays much attention to the valuation of indigenous knowledge. There is a tendency to forget that Europe has dozens of aboriginal peoples. They can be found in the Far North, Central and Southern Siberia, the Far East and the North Caucasus.145

When looking at EU­requested research studies, there seems to be a clear focus on green economy and market­based systems to help sustain biodiversity. The studies deal with topics such as the demand for and supply of habitat banking in the EU; innovative use of financial instruments and approaches to enhance private-sector finance of biodiversity; and design, implementation and cost elements of green infrastructure projects.146 The EU obviously wants to steer clear from a top­down punitive approach, and wants to use market­based correctives to reward good behaviour and make the bad unworkable in a new green economy.

It looks as if the EU Strategy for 2020 exclusively deals with protection of public land. I believe that even though the focus does remain on public land in theory, private land is not forgotten in practice. I have mentioned the AESs which suck a lot of funding out of the EU. The question here is if the EU should rather be paying for outcomes than for the actions of farmers. I feel this issue should be dealt with more in depth in the Biodiversity Strategy and not be brushed aside by saying in general that funding must be revised. It seems a bit utopic to believe that the idea alone of a green economy will make the agricultural sector adapt. The truth is that there are no spontaneously occurring markets for environmental services.147 The EU is still far from a working green economy and should therefore set aside its political reluctance to take on intermediate measures.

  1. EC Fourth National Report, above n 94, at 29.
  2. Ngā Pae o te Māramatanga International Indigenous Development Research Conference 2012: Proceedings (Conference Proceedings, Auckland, June 2012) at 82.
  3. “Environmental economics — Support to sectoral policies: Biodiversity” European Commission <> .
  4. Buckwell and others, above n 125, at 6.



Photo 1: Kepler Track, 2013 (Anemoon Soete).

4.1 Introduction

The New Zealand Biodiversity Strategy (NZBS) dating from 2000 and integrated Statement of National Priorities of 2007148 is New Zealand’s response to art 6 of the CBD149 — a bit late seeing that New Zealand had already ratified the CBD in 1993.150 The plan has a lifetime of 20 years.151 The Environment 2010 Strategy made in 1995 and the 1998 Draft Biodiversity Strategy152 were forerunners to the NZBS. The NZBS starts by correctly stating that biodiversity is everyone’s business, linking conservation to both public and private land.153 Biodiversity does not stop at national or district borders, making it a complex matter which needs to be attended to, not only by the Resource Management Act 1991 (RMA), but also by pest control. The latter is elementary for New Zealand’s biodiversity which includes species that have remained unchanged since prehistoric times, like the tuatara.154

  1. Caroline Miller Implementing Sustainability: The New Zealand Experience (Routledge, Oxon, 2011) at 82.
  2. New Zealand’s Fourth National Report to the United Nations Convention on Biological Diversity (May 2009) at 4 [New Zealand’s Fourth National Report].
  3. Miller, above n 148, at 81.
  4. New Zealand’s Fourth National Report, above n 149, at 32. 152 Gillespie “Biodiversity”, above n 71, at 19.
    1. Ministry for the Environment The New Zealand Biodiversity Strategy (Ministry for the Environment, ME 616, February 2000) at 38 [MfE NZBS ].
    2. Miller, above n 148, at 79.

The NZBS is a lengthy and layered strategy. The core consists of goals which are then supported by themes which in turn have concrete objectives linked to them. In the strategy those objectives are immediately backed by actions and appointed key players. The strategy also mentions that New Zealand spends about 166 million NZD annually on biodiversity management when in contrast the loss of one-tenth of the annual direct benefits from indigenous biodiversity translates into about 1000 million NZD per year. Even on an economic level it is clear that biodiversity is everybody’s business.155

4.2 The New Zealand Biodiversity Strategy

The plan has four main goals. The first goal deals with community and individual action, and that group’s share of responsibility and benefits; the second goal covers the Treaty of Waitangi and wants to protect iwi and hapu interests in indigenous biodiversity;156 the third goal wants to halt the decline in New Zealand’s indigenous biodiversity; and the fourth goal takes care of genetic resources of introduced species which are important for economic, biological and cultural reasons.157 The goals are targeted at the national level but national management actions are supported by regional and sectoral strategies.158

All those goals are supported by actions which are represented in 10 themes. These themes try to cover biodiversity in every relevant topic: biodiversity on land; freshwater biodiversity; coastal and marine biodiversity; conservation and use of genetic resources; biosecurity and biodiversity; governance; Maori and biodiversity; community participation and awareness; information, knowledge and capacity; and New Zealand’s international responsibilities. Those themes have in turn ( priority) actions and objectives linked to them.159

The key players to implement the strategy are national, regional and local government agencies. The national agency Department of Conservation (DOC), a unique institution internationally,160 takes care of public conservation lands and seeks to identify underrepresented habitats under the Protected Natural Areas Programme (PNAP).161 Identifying Significant Natural Areas (SNAs) is a definite priority for DOC, even though the interpretation of the word “significant” is quite unclear both to outsiders and insiders.162 To help with

  1. MfE NZBS, above n 153, at 3.
  2. At 5.
  3. At 6.
  4. New Zealand’s Fourth National Report, above n 149, at 27. 159 MfE NZBS, above n 153, at 27.
  5. Stella Frances and Paula Warren “Conservation of New Zealand’s Biodiversity into the New Decade — Opportunities and Challenges” (1999) 3 NZJEL 169 at 170.
  6. MfE NZBS, above n 153, at 36.
  7. Robert J Wills “Biodiversity and the Resource Management Act 1991: Policy statements, plans and private land” (LLB (Hons) dissertation, University of Auckland, 2009) at 35.

recognising priority issues DOC is aided by the Natural Heritage Management System (NHMS). Nonetheless, NHMS only hands DOC tools to recognise priorities. There are to this day no legislative criteria to tell DOC when or how it should produce recovery plans for threatened species.163 Only 12 plans have been made since 2002 and seven of those were updated versions of earlier plans even though threatened species reach far beyond that number. There could be light at the end of the tunnel coming from the implementation by DOC of the new Project Prioritisation Protocol (PPP).164

The regional and city and district councils take care of the remaining land areas. Next to those institutions, iwi and hapu, community and environmental groups, landowners and resource users also have their say.165 When preparing the Resource Management Amendment Act, however, the government was very eager to head in a new direction by saying it wants to discourage vexatious participants in environmental law­making in New Zealand.166

To try and keep a unified approach amongst all these players who meddle with natural resources management the Committee of Chief Executive Officers (CEOs) of relevant government agencies was created.167 Last but not least, New Zealand also has an environmental court to deal with those who deviate from biodiversity policies.168 Environmental groups can also turn to the Environment Court when they want to appeal a decision from the Ministry for the Environment concerning the wider public. Since environmental groups are not exactly Rockefellers, they can ask for funding to support their case. Paradoxically, the groups need to be a party to the case first before they can ask for funding, putting most groups off for fear of failure in acquiring funds.169

Biodiversity must be used equitably according to the CBD. When teaming up this principle with in situ conservation and the fact that the CBD values traditional knowledge as much as other forms of knowledge,170 particular attention is given to Maori involvement in the New Zealand context.171 They should be able to benefit from biodiversity either by physical possession or by receiving benefits in return for their knowledge.172 This brings us to ownership

  1. David J Round “The Lion, the Nurse and the Weasel: Law and Policy concerning Endangered Species in New Zealand” (2011) 15 NZJEL 147 at 162.
  2. Seabrook­Davison, above n 6, at 163.
  3. MfE NZBS, above n 153, at 36.
  4. Resource Management Amendment Act 2009; Sacha Hollis “Old Solutions to New Problems: Providing for Intergenerational Equity in National Institutions” (2010) 14 NZJEL 25 at 47.
  5. New Zealand’s Fourth National Report, above n 149, at 4.
  6. “Environment Court” New Zealand Ministry of Justice <>. 169 Hollis, above n 166, at 48.
    1. Gillespie “Biodiversity”, above n 71, at 20.
    2. At 3.

172 At 46.

of resources debates, which has been left ambiguous both in the Wildlife Act173 and in the Fisheries Act,174 and alas also in the Biodiversity Strategy. Intellectual ownership is another issue only at times dealt with by law,175 simply because older legislation still needs to be updated to recent situations176 and more attention should be given to the Maori’s own system of intellectual property rights called mātauranga Māori.177 Another option is to find new regimes such as contracts to deal with intellectual ownership instead of existing intellectual property law.178 All these economic issues mean that the involvement of Maori179 is stronger on paper180 than in practice.181

4.3 Implementation and Instruments

Next to being a party to various international treaties, New Zealand has law dealing with a direct or incidental focus on biodiversity. Significant legislation for biodiversity can be found in the Resource Management Act of 1991 and its offspring, a proposition for a National Policy Statement (NPS) on Indigenous Biodiversity.182 The NPS has proven to be a long­term job. An NPS had already been pushed by the Ministerial Advisory Commission (MAC) in 2000.183 Notification of the NPS was then originally expected in 2002. Nothing happened and the implementation was pushed back to 2005. Still nothing happened and the NPS was only put back on the agenda by 2008. The proposal was finally formulated in 2011 but has been stuck in the phase of a proposal ever since.184 Even the CBD has asked New Zealand to get on with the implementation of its strategies.185

  1. Wildlife Act 1953; Gillespie “Biodiversity”, above n 71, at 24.
  2. Fisheries Act 1996; Gillespie “Biodiversity”, above n 71, at 25.
  3. Natalie P Stoianoff “Navigating the Landscape of Indigenous Knowledge — A Legal Perspective” (2012) 90 Intellectual Property Forum 23 at 23.
  4. Gillespie “Biodiversity”, above n 71, at 34.

177 At 36.

178 At 47.

  1. Ngā Pae o te Māramatanga, above n 145, at 272.
  2. Ministry of Maori Development Biodiversity and Māori: te ara o te ao tūroa (Te Puni Kōkiri, Wellington, 1994) at 12.
  3. Gillespie “Biodiversity”, above n 71, at 25.
  4. Resource Management Act 1991 [RMA], s 45.
  5. Ministry for the Environment Bio-what?: Preliminary Report of the Ministerial Advisory Committee: Addressing the Effects of Private Land Management on Indigenous Biodiversity (Ministry for the Environment, 2000) at 54 [MfE Bio-what?].
  6. Wills, above n 162, at 13.

185 At 14.

Once the national government has put in place guiding policies it will be up to regional and local authorities to further work out conservation measures in action plans since the CBD opts to conserve in situ.186 The efforts of those various lower­level agencies will in turn still be monitored by the centrally placed DOC.187

Internationally New Zealand indirectly fulfils CBD obligations by being part of other environmentally related treaties such as Ramsar, the Convention on Migratory Species, and CITES. At national level biodiversity directly or indirectly relies on numerous Acts. The policies in place cover conservation, biosecurity and resource management.188 The Ministry for the Environment has implemented the Soil Conservation and Rivers Control Act, the Environment Act, the Hazardous Substances and New Organisms Act,189 the Ozone Layer Protection Act, the Resource Management Act, the Climate Change Response Act, the Aquaculture Reform Act, the Fiordland Marine Management Act, the Waste Minimisation Act, the Environment Canterbury Act, the Environmental Protection Authority Act, and the Exclusive Economic Zone and Continental Shelf Act.

Other Acts were brought about by various departments. These include the amended Forests Act,190 the Wildlife Act,191 the Marine Reserves Act, the Reserves Act,192 the Marine Mammals Protection Act,193 the National Parks Act,194 the Conservation Act, the Crown Minerals Act, the Biosecurity Act,195 the Fisheries Act, and the Marine and Coastal Area (Takutai Moana) Act. Regional and local councils make their own plans based on the Acts. Even the private sector is not forgotten in law­making. The Dairying and Clean Streams Accord is an agreement stating the effort to reduce the impact of dairy farming by suppliers supplying to New Zealand’s largest dairy company, Fonterra.196

  1. MfE NZBS, above n 153, at 10.
  2. New Zealand’s Fourth National Report, above n 149, at 29. 188 MfE NZBS, above n 153, at 7.
    1. New Zealand’s Fourth National Report, above n 149, at 27.
    2. Ministry for the Environment Proposed National Policy Statement on Indigenous Biodiversity: Evaluation under section 32 of the Resource Management Act 1991 (Ministry for the Environment, ME 1032, January 2011) at 23 [MfE Proposed National Policy Statement].
  3. “Laws and Treaties” Ministry for the Environment <>. 192 New Zealand’s Fourth National Report, above n 149, at 36.

193 At 30.

194 MfE Proposed National Policy Statement, above n 190, at 23. 195 New Zealand’s Fourth National Report, above n 149, at 27. 196 At 37.

Biodiversity is not easily managed and the implementation of the CBD principles has brought on some governance problems, especially under the RMA. The Act gives district and city councils responsibility for governing their indigenous biological diversity.197 The RMA further specifies that the life­supporting capacity of air, water, soil and ecosystems must be upheld,198 areas of significant indigenous vegetation and habitats of indigenous fauna must be regarded as matters of national importance,199 and the intrinsic value of ecosystems must be recognised.200

Under the RMA the government has chosen to work out several National Policy Statements to overcome difficulties with implementing vague RMA principles. These policies are the National Coastal Policy Statement, the National Policy Statement on Freshwater, and the proposed National Policy Statement on Indigenous Biodiversity.201 The latter was created since the gov­ ernment did not believe that continuing with current practice, amending the Act, increasing funding for non­statutory guidance, giving targeted assistance to some councils or creating a national environment standard, would do the job.202 The NPS on Indigenous Biodiversity is not all­overruling. It must be weighed together with other considerations to achieve the sustainable man­ agement purpose of the Act.203 The policy is also limited by its application and does not apply to coastal marine areas or any public conservation land.204 The NPS on Indigenous Biodiversity will help to clarify the RMA to assist local authorities in their understanding of the Act,205 increase consistency of their plans with the RMA,206 and further their relationship with Maori.207 It does this via eight policies setting out more clear­cut measures that the local authorities

can use and the minimum of protection they should offer.208

  1. RMA, ss 30 and s 31.
  2. Section 5(2)(b).
  3. Section 6(c).
  4. Section 7(d).
  5. MfE Proposed National Policy Statement, above n 190, at 1. 202 At 16.
  6. At 3.
  7. At 6.

205 At 44.

  1. Helen R Lane “Enhancing biodiversity preservation on privately owned land: An analysis of New Zealand’s policy approach” (Master’s thesis in Management in Economics, Massey University, 2002) at 4.
  2. MfE Proposed National Policy Statement, above n 190, at 2.
  3. Ministry for the Environment Proposed National Policy Statement on Indigenous Biodiversity (Ministry for the Environment, INFO 576, January 2011) at 5.

Another important instrument to keep biodiversity up to par in New Zealand is the use of funds. Especially when trying to persuade private landowners209 to take voluntary measures210 have funds been set in place of regulations. About a quarter of all funding allocated to biodiversity goes to private landowners and community initiatives. There are also specific funds to support Maori initiatives like the Poukoura Taio Fund and the Ngā Whenua Rāhui.211 Various other funds supporting the policy in general are the Queen Elizabeth II National Trust (QEII), the Nature Heritage Fund (NHF), the Biodiversity Condition and Advice Funds (Biofunds) and the Community Conservation Fund (CCF). Remembering that money is a fleeting good the government has also invited private players to participate in several commercial sponsorship programmes212 to bring in the cash.

4.4 Future Vision

Even though the NZBS is a strategy that spans 20 years, it has already booked some successes. Improvement has been made regarding protection on private land, species recovery programmes, raising awareness of the problem,213 increasing Maori involvement, and improving communication with the help of the CEOs.214 On the other hand, the strategy is still far from reaching its goals. Some even think it a waste of time to consider the strategy at all since it has no legal standing on its own.215 The success that has been booked on private land has often been related to monetary measures, such as funding incentives and land purchase. Alas, the existing funds can never meet the demand.216 The same monetary issue arises with plant and animal pest control,217 a procedure which is a necessity for the fragile biodiversity of New Zealand constantly combating alien fauna and flora.218 Next to and perhaps related to the monetary issues, the way in which DOC deals with alien species is at times done with questionable instruments like the controversial 1080 poison.219

The methods used are not perfect and this leads to a fragmented approach, not wholly covering the protected habitat or species. Natural areas continue

  1. MfE Bio-what?, above n 183, at iii.
  2. David Farrier “Conserving Biodiversity on Private Land: Incentives for Management or Compensation for Lost Expectations?” (1995) 19 HELR 303 at 405.
  3. New Zealand’s Fourth National Report, above n 149, at 32–33. 212 At 98.

213 At 4.

214 At 33.

  1. Round, above n 163, at 155.
  2. MfE NZBS, above n 153, at 37.

217 At 38.

  1. Frances and Warren, above n 160, at 170.
  2. Miller, above n 148, at 80.

to be fragmented and create islands of protected biodiversity when those islands should be connected by corridors. There is at the moment insufficient knowledge220 about ecological processes221 and restoration techniques to fully grasp the impact of the neglect of these areas.222 Related to the fragmented approach, I return to the success booked on private land. Not all private land management has seen improvement. There has been no success for low­lying lands as they are not adequately covered by the terrestrial areas protected network. They are hard to acquire because they are very valuable for farmers. They are subsequently high­priced and private landowners are not exactly willing to sell.223

The government could and does try to amend this via conservation man­ agement agreements, fixed contracts, restricting landowner development rights, establishing proprietary rights in wildlife products,224 covenants, funds and direct purchase of land, because purely relying on voluntary measures has proven to be insufficient.225 Still, caution is recommended since strict regulations are also not the way to go and are likely to be counterproductive. Regulations would never be able to be monitored properly giving “landholders [...] a clear incentive to shoot, shovel, and shut-up when they find something of biodiversity conservation value on their land” as David Farrier describes it.226

Funds for maintaining biodiversity, already drying out as much as the wetlands, are simultaneously threatened of being allocated to the more traditional sectors such as health, education and infrastructure.227 When looking at the variety of threatened species, many miss the nets of protection here as well, since funds go to a small amount of highly threatened species, letting the others slip into danger. Another suffering because of lack of funding is DOC itself dealing with inadequate resources, staff shortages and a crushing workload.228 Perhaps this is why DOC looks in the direction of green economy initiatives rather than wait for government funding, by being a member of the Business and Biodiversity Offsets Programme (BBOP), a collaboration which tries to implement sustainable green companies in the global economy.229

  1. Ministry for the Environment A snapshot of council effort to address indigenous biodiversity on private land: a report back to councils (Ministry for the Environment, Department of Conservation and Local Government New Zealand, June 2004) at 2 [MfE A snapshot].
  2. Gillespie “Biodiversity”, above n 71, at 16.
  3. MfE NZBS, above n 153, at 38.
  4. New Zealand’s Fourth National Report, above n 149, at 5. 224 Clough, above n 123, at 19.

225 New Zealand’s Fourth National Report, above n 149, at 28. 226 Farrier, above n 210, at 407.

227 New Zealand’s Fourth National Report, above n 149, at 32. 228 Seabrook­Davison, above n 6, at iv.

229 Wills, above n 162, at 54.

Concretely, Seabrook­Davison suggests that top priorities ought to be the creation of a list of all species on a central and public register,230 dedicated legislation,231 security of funding,232 and an integrated national approach and coordinated management between conservancies.233 Next to that, standard recovery plans, threatened species recovery groups234 and community conser­ vation groups235 should be made for all species. Another topic screaming for an exhaustive policy is pest management, since there is hitherto no national strategy for that.236 Seabrook­Davison recognises that not all can be done via legislation and he calls for encouragement of private landowners to be custodians of their land and the species it contains.237

In general, now that the issue of declining biodiversity is known, awareness of the value of biodiversity and ecosystems must still be increased.238 It has also been suggested that the government should review its national strategy and Acts239 and address climate change and sustainability more in depth.240 Local, regional and national strategies still need to get more aligned,241 because the differences in effort are painfully noticeable.242 Therefore more operational synergies must be identified,243 including those with NGOs and the private sector. Finally, central government must set quantifiable goals and time limits and create stronger review and audit functions244 to keep itself from prioritising economic interests as government members switch seats and to stop procrastination. I recognise the latter as one of the biggest threats to New Zealand’s biodiversity.

230 Seabrook­Davison, above n 6, at 175.

231 At 169.

232 At 166.

233 At 167.

234 At 166.

235 At 170.

236 At 168.

  1. Round, above n 163, at 164.
  2. New Zealand’s Fourth National Report, above n 149, at 34. 239 MfE NZBS, above n 153, at 39.
    1. Wren Green and Bruce Clarkson Turning the tide? A Review of the First Five Years of the New Zealand Biodiversity Strategy: The Synthesis Report (Department of Conservation, November 2005) at 45.
  3. New Zealand’s Fourth National Report, above n 149, at 33. 242 MfE A snapshot, above n 220, at 1.

243 New Zealand’s Fourth National Report, above n 149, at 33. 244 Green and Clarkson, above n 240, at 45.

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