A Brief History of Stewardship Land

And its implications for conservation law reform

Stewardship land makes up about 9% of New Zealand’s land area.  It is often said today to have the lowest levels of legal conservation protection, and in some ways this is true.  But as with so many truths, it is partial.  The lack of understanding about this important category of land is an opportunity for some and stumbling block for others.

In this week’s Brenty’s Two Cents, I’ll tell a brief story of stewardship land, and finish with some thoughts on the implications for any future conservation law reform.

Back to the '80s

Throughout the 1980s, New Zealand’s state sector was reorganised.  In that process the Department of Conservation, or DOC, was formed in 1987.  DOC was allocated land that had been assessed for conservation values, and which had belonged to various old departments including the New Zealand Forest Service and others.  DOC land was given a “classification” according to those conservation values:  land became (or remained) national parks, scenic reserves and various other classifications.

By the time the Conservation Act was passed in 1987, this “classification” job was only two-thirds done.  The government had not assessed the rest of the land that looked like it should sit with DOC – so it couldn’t decide how to “classify” the land.  What, then, to do with the remaining third? 

The solution was an interim classification or holding pen.  DOC would gradually find out what conservation attributes that land had then classify it permanently over time.  Land in this holding-pen was called “stewardship land”.   

At the time, the idea for stewardship land was that:

• Some stewardship land would obviously prove to contain very high ecological values –these might be added to national parks or given other high protection.  Vast tracts of South Westland fit this “high ecological value” bill and are indistinguishable from the neighbouring national parks – for that reason large areas have even been formally identified as appropriate for addition to national parks (see Paragraph 6.4.1 of the Mount Aspiring National Park Management Plan and section 4.5.1 (b) of the Westland Tai Poutini National Park Management Plan 2001 – Amended 2014). 

• At the other end of the spectrum, some areas of stewardship land would not contain similarly valuable ecology, and could then be considered for disposal.  Some small broken pieces in northern Westland and Buller fit this bill, along with odds and ends like sheds and urban or peri-urban premises belonging to DOC.

Because much stewardship land “looked good” but remained un-assessed, much of it attracted high interim protection in the form of a high barrier to easy disposal.  (A 1990 amendment to the Conservation Act muddled this to an extent, but a 2017 Supreme Court decision eventually served to clarify the high/interim protection character given to stewardship land under the Act.)

For interested readers, some good papers explaining these original policy designs in detail are available here. These are far richer than my effort above.

Stuck in the Holding Pen

In 2024, DOC holds and administers around third of all land in New Zealand.  Stewardship land remains about a third of that.  This means about 2.7 million hectares, much of which is in Westland.  For those who like their “rugby field” images, this is about a kijilion rugby fields, the bush on which weighs 3 billion Eifel Towers.

As we have seen, insufficient ecological information was at the very core of the retention of deemed “stewardship land” in 1987.  Since then, stewardship land has sat for over 35 years in a departure lounge to an unknown destination.  And in this way, ambiguity of knowledge remains characteristic of a huge fraction of New Zealand.  Yet anyone who has ever worked in the bush knows how painstaking it can be to get a single data-point, let alone assess vast tracts of country on one parameter.  It follows that reducing the levels of ambiguity about the general conservation values for 1/9^th of New Zealand was always going to require a lot of time, effort, and cost to reduce.

Time, effort and money are always in short supply in conservation, so with some exceptions, very little stewardship “reclassification” has happened.  In time the story of an interim or temporary holding pen for land began to fade and be replaced with practical or working acceptance of stewardship as a more permanent land classification.  This fed back into a slowing of progress.  And as ever, with time passing the original architects moved on and grew older – a forgetting happened.  Today, then, it is possible to find DOC materials that have forgotten the original design, and frame stewardship protection as if giving low and permanent protection.

For these kinds of reasons, little progress was made with the reclassification of much stewardship land in the 35 years between 1987 and 2022.  Instead most additions to permanent DOC land “classifications” came through a process for known as “tenure review”, which exchanged Crown land in the South Island high country.  This is another story, so back to stewardship.

With this growing sense of permeance and low protection, a notion that “stewardship land may not have much ecological value” flipped in valence.  Under the original “interim protection” policy design, the idea was “we had better find out about this land”.  But now you could say “we haven’t done much about this land for a long time”, so that idea “stewardship land simply has low value” became much more natural.  A lack of progress over time, then, had “cheapened” the cost of making (legally inaccurate) suggestions about stewardship’s protection and (factually inaccurate) suggestions about its low value. Almost needless to say, this kind of talk was generally in service of development proposals, wittingly or otherwise.  The abstract character of such talk also allowed people not to talk about actual places.  In this way conservation passions could be rebuffed regardless of the ecological qualities of the stewardship land in question.  And so after all this the development of stewardship land, often through mining or hydro schemes, could be talked about as if it was - and had always been - in keeping with the original intention for the land.  As such ideas of developing the land were discussed with increasing intensity.

By 2013, expansions of mining on stewardship land illuminated the ways in which the law did not practically operate to protect the land (some 2020 reporting, for the sake of example, is here).  These developments further hardened the perception of low protection and low ecological value for all stewardship land.  Internal DOC documents from this time referred to a “perception gap” about the ecological value of much stewardship land, but these documents seldom saw the light of day. 

Then-Parliamentary Commissioner for the Environment Dr Jan Wright noticed a lot of these patterns.  She reported on stewardship land issues in 2013 and 2015, and saw the dangers that were arising when a category intended to be interim gained a permanent feel.  Among other things she suggested getting on with reclassification.

Finally getting out of the pen?  Stewardship Reclassification in Westland

In 2017, the Labour-New Zealand First government announced a policy of no new mines on conservation land.  Whatever one might have thought about the effect of this policy on any particular mining proposal or economic policy, this was a policy that better gelled with the interim or holding-pen character of stewardship land protection.  But the necessary complement of the “no new mines” policy, and the only politically realistic course, was to make stewardship’s interim character real.  There was no other way to ward off demands to economically develop stewardship land that did have low ecological values.  In simple terms, then, “no new mines” meant it was time to get on with stewardship re-classification for real.

In 2021, the government made its start.  The Conservation Minister was an ambitious Hon Kiri Allen.  She started the job in the region with the most stewardship land, Tai Poutini/Westland.  Allen seems to have been motivated by the potential to unlock the economic potential of conservation land for Māori.  She seems also to have been keen to “break the back” of the stewardship problem, and so cultivate a reputation for delivery at speed on an unsolved problem of a generation.

A documented emphasis on economic development and speed delivered many legal problems to the Tai Poutini/Westland efforts.  I’ll talk about three.

First, the many legal processes involved in reclassifying stewardship land allowed only for assessment of conservation values, with conservation being defined (and excluding economic values).  As such DOC initially promised advice in the form of “genuine technical assessments” of conservation values, to be delivered through National Panels of seasoned experts (see these cabinet papers).  But it was perhaps unsurprising that these National Panels’ terms of reference were loose, and involved something other than just applying DOC’s technical guidelines for assessing conservation values.  A wider focus sat better with many on the Coast and in a submissions process many turned up to give evidence about what they could gain from the land. (For those readers who are interested I have previously written about some Coast economic currents here.) Would DOC do the legally correct thing, exclude these views from its advice, and disappoint these people? Or would that course reduce its own mana on “the Coast” in untenable ways?

The existing law – focussed on genuine technical assessment of conservation values –  also put Poutini Ngai Tahu in an unusual and difficult position.  Its ambition for its people and for the region were widely, though not universally, accepted as relevant to Westland any reclassifications.  But how relevant and in what ways? Legally the situation was ambiguous due to a lack of clarity about how section 4 of the Conservation Act would apply to reclassifications. (I’ve written about some of the qualities and problems with section 4 here).  Section 4 considerations led to the addition of a Mana Whenua Panel into the process, and this Panel gave separate advice to the National Panel. But the sensitivity of the issues - for example whether the Mana Whenua Panel could talk about mining etc in a legally relevant way, while others could not - drove DOC to a degree of obfuscation, and with this followed inevitable mistrust in some quarters.  Ugly insults and a heated public atmosphere resulted.

A second key legal problem with the Westland reclassification process was that DOC gave National Panels key information about the ecological values of parcels across Westland.  There was an awful lot of it, as might be expected for a whole region.  But while the materials were often freshly compiled, much of actual information was very old.  Some applied in good resolution to small land parcels, but some was snapshot information about massive areas.  Some information was ascribed to areas simply because it applied to neighbouring areas – no one seemed to have been up some valleys for a look at various conservation parameters.  To ice this cake, DOC said it could and would not get new ecological information for the decision-makers.  As usual there was not money, and now with a need for speed, there was not time.

All this posed big problems for decision-makers:  in administrative law terms decisions have to be based on fair, adequate and accurate information.  DOC claimed to have provided the “best available information”.  But this was and is not the relevant information standard for reclassification. Another idea was that the compressed timelines - aka the rush - may actually have assisted the National Panels in their work because it promoted consistency. But while treating like with like of crucial importance in public law, in many cases it was not even possible to fairly judge the conservation values of many Westland stewardship areas - to know what “like with like” actually meant - on the available information. In these circumstances re-classification would always be legally very fraught.  

On top of these narrower legal issues were wider ones of stewardship legal policy.  This was about finding out about land to enable decisions about it.  Skipping on a meaningful “finding out” part didn’t match with that.  It seemed, then, that “best available information” wouldn’t necessarily be capable of moving stewardship land away from its strong interim protection.

To the extent that it was motivated by unlocking economic potential, the third problem for the Westland stewardship re-classification process was that it was always subject to a little-acknowledged dynamic akin to a “soft ratchet” function in commercial property rent reviews.  The ratchet was simple:  conservation protections for much of the Coast would need to stay the same or equivalent, or be enhanced, and there was only ever scope for small marginal disposals or reductions in protections – whatever anyone might have wanted from the land.  In my travels I have come across at least three sources for this ratchet, each international.  These are New Zealand’s commitments: 

• As a signatory to World Heritage Convention.  The UNESCO inscription of the UNESCO Te Wahipounamu World Heritage Area is predicated on the “strong protective measures taken by the New Zealand authorities” to protect the area.

• To the 2003 International Council on Mining and Metals, which included a “No-go Commitment” with respect to world heritage areas.

• Through 2013 World Heritage Committee Decision 37 COM 7 (Part III), which was similar.

Probably for these reasons among others, the Westland stewardship reclassification died an apparent death in about 2023. 

For the very same reasons, if reclassification returns under the new government and uses the same information, it will be open to straightforwardly viable legal challenge from the likes of both miners and conservationists.  Attempts to make a formal switch to a “best available information” standard within the current law will leave similar room for manoeuvre for opposition from all quarters.  And more far-reaching conservation law changes will pose international law and possibly also electoral risks.

Yet even with these and other significant legal problems, in my view the bigger problem with the Westland/Tai Poutini stewardship reclassification were not legal at all. 

If stewardship status is the departure lounge, the biggest problem has to do with the destination classifications themselves. 

We can start to notice these problems with recognising Poutini Ngai Tahu’s opposition, for various reasons, to additions to national parks.  During the Westland process, part of Poutini Ngai Tahu’s proffered solution was a large historical reserve, and another part was to leave large areas pristine areas in South Westland alone.  Whatever the merits of these ideas, and FWIW I think there are many, the historic reserve solution didn’t fit well with the current law on historic reserves, and the “leaving things unresolved” solution was counter to the whole thrust of sorting stewardship issues out.

Other groups had other solutions, and these had good aspects and drawbacks too.  The details here are for another day, and the sketch is in no way intended to criticise any positions people took on these issues.  I raise it here only to illustrate that there was always going to be a shoehorn-type quality to the Westland reclassification exercise.  The problem wasn’t how land should fit the current law.  The problem was that the current law itself was arguably no longer a widely-shared and living agreement about appropriate ways to conserve special parts of New Zealand.

Implications for conservation law reform

When we talk about conservation land classifications, we start to talk about things like what is and isn’t allowed in a national park.  Or who is allowed in under what conditions. We talk about things like what a nation park is, and what our relationship with it is. We might also talk about whether we are really interested in finding out about stewardship land and going from there, or whether we can classify more “from the hip”. What would we do with the land if we did that? Conserve it? Mine it? On what basis? And so on.

Many have noticed that the current law doesn’t evoke a widely shared agreement on any of these kinds of questions, even if there is a general view that a vast majority treat New Zealand’s special places as something like sacred.  The stewardship story is another one of flagging in commitments to a long-term course, forgetting, opportunism and so on.

In recent years many people and organisations have made excellent contributions about how to move forward with conservation law, but these have often treated the issues as policy issues.  For me, the issues are deeper than just policy and they come back to brokering a durable national agreement on the relationship we want to have with different parts of the whenua. 

For one of the very biggest issues, we might ask whether conservation, as defined in 1987, evoke the way a significant plurality of New Zealanders want to treat our most precious land in 2024?  Or is a more reciprocal and relational concept more appropriate, and perhaps a way to better recognise the best of Te Ao Pakeha and Te Ao Māori?  Even if different areas are different, does treating land differently on either side of a line make sense? 

How would we raise and discuss these sorts of questions?  Would it be by responding in writing to a DOC discussion document issued in Wellington, maybe eventually repeating the dose and turning up at Select Committee and so on?  Or is another way better?

Readers will understand that many conservationists baulk at the prospect of opening up this discussion.  They have a justifiable fear of losing some of the most precious taonga they know.  The presence of people like Shane Jones on the scene, who seem to be willing to be publicly bellicose for short-term gain, doesn’t help cultivate a healthy discussion along these lines.  But as elsewhere in life, just because we may not want a conversation doesn't mean others don’t, nor that we can or should prevent a conversation starting.  The injunction for the conservationist, then, is fumble around with language and get ready.

For my own part, I have hope that a discussion along these lines could go well, if and when conservation law reform comes on the table. 

I have this view because of my position as Vice President at FMC, a national “recreation” organisation with a large membership.  Recreation is a dimension of the legal definition of conservation, so is a term we are tied to whether we like it or not.  The term is not widely understood, and tends to be panned as enjoyed by an “elite”, or evoking a shallow and “one way street” kind of relationship with place, rather than a deep relationship enjoyed by many and with a tenor that is almost impossible to articulate.

I’ve written about some of that at page 18 of this PDF, and found the resulting conversations extraordinarily rich.  Like this effort, that work represents my personal views and not FMC’s.  Please get in touch with me if you’re interested in discussing how you talk about your sense of place, or anything I’ve raised here or elsewhere.

Thanks as ever for your interest in Brenty’s Two Cents. 

AB

11 November 2024