Crown argues it has power to revoke status of conservation land in Ruataniwha appeal

Monday 27th February 2017

The Minister of Conservation has the right to revoke the status of land in the conservation estate, the Crown argues in a Supreme Court challenge to a ruling that's holding up a Hawke's Bay irrigation scheme allowing more intensive farming in the region.

The Supreme Court hearing, set down for two days, is an appeal over whether the Court of Appeal was right in its 2016 ruling that the Department of Conservation’s planned land swap deal wasn't legitimate. The court battle somewhat bizarrely pitches a government department charged with conserving New Zealand's natural heritage against the Royal Forest & Bird Protection Society.

At the centre of the case lie 22 hectares of conservation land that would be flooded by the planned dam. A protracted legal battle was sparked when the director-general of conservation, Lou Sanson, revoked the conservation status of the land that lay within the footprint of the proposed reservoir, making it possible to swap the land for 170 hectares adjacent to the park that also held conservation value. The 22 ha lies within the Ruahine Forest Park.

The $275 million water scheme, backed by the Hawke's Bay Regional Council's investment arm, would create a 93 million cubic metre reservoir to store water in the upper Makaroro river to improve river flows for agricultural use in the Tukituki River catchment. It's estimated it would provide irrigation for 25,000 hectares of farmland in central Hawke's Bay.

The case went before the High Court, where it was found to be a legitimate move. However, environmental lobby Forest & Bird then successfully asked the Court of Appeal to prevent the land swap, arguing that the status should not have been changed as there was no evidence the 22 ha of land was no longer worth permanent protection as envisaged by New Zealand's Conservation Act.

This week the Minister of Conservation Maggie Barry and the dam company, Hawke’s Bay Regional Investment Company (HBRIC), are seeking to overturn that ruling. A lawyer for the Crown, today argued that the 170 hectares are a "worthy addition" to the park that would enhance its overall value. He noted that the 22 hectares is a small fraction of the total 94,000 hectares contained within the park and argued it was permissible to revoke land's conservation status.

According to Forest & Bird, however, the status of the land should never have been changed as it is nationally significant for its ecological values. The land within the dam's footprint is home to species such as native bats, New Zealand falcon as well as rare wetlands.

It also argues that if the land swap is allowed to go ahead, "it will set a legal precedent for over a million hectares of specially protected conservation land, creating the possibility that these areas can be reclassified and destroyed,” said Forest & Bird chief executive Kevin Hague.

The case is due to be heard Monday and Tuesday

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