Recapping last time
The New Zealand Conservation Authority and local Conservation Boards have key decision-making powers in relation to conservation land planning. My last piece was all about recent government proposals to strip them of these powers, and centralise the powers in the Minister of Conservation. By doing this, the key channel for public input on how to take care of their special places, their public conservation land, would be wrestled away from the public and taken to Wellington. Meaningful public input on their special places will be lost unless the public stands up and is counted.
None of this is mentioned in the only public-facing materials on the government’s proposals. These consist of a short “Fact Sheet”. The issues were mentioned in passing in slightly deeper materials presented in a target consultation. But only deep in a belatedly-dumped proactive release of ~250 pages could one find any real engagement with them, at all. This engagement was simply to dismiss the concerns.
None of this matches the history of the issues. Comparable proposals for Ministerial decision-making have happened only once in remotely recent history. This was in 1979/1980. Those proposals came up in another time of poor national economic conditions, when the government had also been frustrated with “not enough yesses”. Back then, the Muldoon government backed out of a comparable change for Ministerial control, although it did weaken the Authority. Governments since that time have strengthened both the Authority and Boards by adding tangata whenua views through several Treaty settlements. The proposals would alter and effectively weaken those settlements - making the government one to infringe upon the national interest in the durability of Treaty settlements. Whichever way this plays out, this seems sure to be an electoral risk.
On the history, I have since been reminded:
Of a 2013 review under the previous National-led government, recommending that Conservation Boards arrangements be strengthened, and
That sole Minsterial decision-making was not good enough even for Fast Track decisions. (See the Fast Track Select Committee Report at page 3 of 232).
This history helped show that following through with a proposal to centralise conservation decision-making so heavily in the Minister’s hands would be unprecedented. It amounts to a change in the cultural and political settlement for conservation land.
Hence my call for a responsible public discussion, and proffering possible (and to my mind more sensible and moderate) alternative arrangements. One key to success will be getting the right people making decisions - meaning better proposals might start by changing the Authority’s composition, and possibly reinstating it to pre-1980 levels of strength. In my view a re-composed Authority cannot become an opportunity for sectoral interests to ram through their views, but must be a forum where the likes of hunters, fishers, and traditionally-unheard tourism interests have a voice and say. If wider interests like miners want a seat too, that too would also alter the social and political settlement for public conservation land, including the definition of the conservation, and DOC’s functions. That’s fine, but if and only if there is first a responsible national discussion, and something more than shabby backroom lobbying.
After last time
After writing that last piece:
I had the chance to discuss the issues with Kathryn Ryan on National Radio’s Nine to Noon, in my Federated Mountain Clubs or FMC capacity.
The Minister responded on the same programme a week later.
I had the chance to discuss the issues privately with the Director-General of DOC.
The Parliamentary Commissioner for the Environment and Environmental Defence Society released their views on the consultation, notwithstanding that it had been targeted and private.
There has been other reporting, for example on Law News.
Not bad for a little blog, out in the back blocks of the New Zealand internet. But all told, despite the concerns raised and public exposure, the Minister does not seem to want to engage with the decision-making issues. He seems to want to take decision-making for himself and his successors in Wellington. He seems to assess, probably correctly, that he can achieve this unless and until it becomes a political risk.
His defence is two-fold. First is to suggest that they are needed to deal with DOC’s concessions backlog. No matter that DOC is “working at pace” to address its permission backlog, with or without these proposals. This is happening at the Minister’s own direction. Second is to suggest that DOC’s management planning is hopelessly behind time (which it is). No matter that the management planning has much more to do with resourcing and how to implement section 4 of the Conservation Act, a review of which is entirely separate and has, since July, gone to ground. (For those interested, some of my personal views on section 4 are here.)
In short, the Minister has two reasons against the decision-making concerns. Neither makes much sense. But because we know Mr Potaka is a smart man, something must be going awry somewhere else. It is genuinely-held but different views? Is it misunderstanding, mine or his, something we’re all liable to? Is it shabby backroom lobbying?
At FMC we are hoping to be able to better understand the Minister’s concerns, and him understand our, by sitting down to talk. That will not be shared here - but in the meantime, it would help to let him know you share the concerns I’m writing about here. You can email Mr Potaka at T.Potaka@ministers.govt.nz. You might also like to approach Labour or Green parties on these issues - neither seem to be anywhere.
This week - Exchange and Disposal
I said I would get into some of the weeds this week, including some of the details of the proposed National Conservation Policy Statement (NCPS). For most this would be worse than sitting down to enjoy the spectacle of paint drying. Real issues are also less likely to arise through the NCPS if sensible decision-makers are installed, which just takes us back to the decision-making issues above.
So instead, we’ll start to consider the government’s proposals for the exchange and disposal of conservation land. This has recently been in the headlines with the sensational revelation that up to 60% of public conservation land could be on the chopping block. Examples are here (Mountain Tui) and here (Disinterpreted). Too sensational to be true? I think so. But this does not mean there are not serious concerns in this area too, as both those authors rightly point out.
First but by no means foremost, in contrast to the management planning proposals, the government has chosen not to consult on its exchange and disposal proposals beyond a very generic exercise last November. Instead, the first chance the public will have to discuss the details of whether and how their own public conservation land might be exchanged or disposed - traded or sold - will apparently be at a Parliamentary Select Committee with a government majority. By that time, and as we all know, the proposals will probably be a done deal with only minor details to play for.
For me, this is a case of “so far, so extraordinary”. The exchange and disposal changes would alter the cultural and political settlement for conservation land. I invite readers to form their own views by reading the short discussion below.
The Exchange and Disposals
So what are the proposals? Finally for this week, a word on where each of these areas are now, and where they seem to be going.
To recap:
The exchange and disposal proposals were set out at a high level in Part 9 of a November 2024 Modernising Conservation Discussion Document.
Many of the 5,500 submissions on these proposals were against weakening the law. The official summary indicates that a very clear majority against the proposals. Notably the Parliamentary Commissioner for the Environment said that without getting detailed design considerations right “there is a real risk that high-value public conservation land will be traded away for little or no corresponding long-term benefit.” (See p 11 of 19.)
The Fact Sheet (the same as mentioned above) contains vague information indicating that these proposals are now being progressed.
The only other public-facing materials are at the back of DOC’s belated 250 page document dump (to which a second 210 page dump was added sometime in the last fortnight). These show in-principle Cabinet decisions in June 2025 to change the tests for exchange and disposal of conservation land, making both much easier, on rationale that both are needed for “flexibility” and the like. The documents also appear to show that DOC agrees with these proposals! (See the top of p 209 of 249 in the first dump.)
The Disposal Situation Now
Selling public conservation land is not easy. Taking some possibilities:
Public conservation land held under the National Parks Act 1980 - ie national parks - cannot be sold without an Act of Parliament (see its section 11).
Public conservation land held as a “reserve” can only be sold using complex Reserves Act powers (see its sections 24 and 25). These are long and winding.
Only some public conservation land held under the Conservation Act can be sold using the power in section 26. Specifically only some, but not all, stewardship areas can be sold. Deemed stewardship areas cannot be sold (see under section 62(1)). Other stewardship land can be sold. One pathway is to declare land to be held for conservation purposes under section 62, but this requires going and having a good look at it - primarily its ecological values, using well-established criteria - which can be a problem for those in a hurry or unwilling to pay. A second pathway is for some former Crown Forestry land held under section 61 of the Act.
Policy 6(c) of the Conservation General Policy adds that land cannot be sold unless it has “no, or very low, conservation values”, with further elaborations in Policy 6(d). Case law such as the Supreme Court’s Hawkes Bay Regional Investment Company Limited v Forest & Bird and Minister of Conservation [2017] NZSC 106 and older High Court decision in Buller Electricity Corp v Attorney-General [1995] 3 NZLR 344 add to the difficulties for sales.
The Proposed Disposal Situation
The government wants to replace this with an altogether weaker standard for disposal. It would allow disposals where:
The values on the land concerned “are not considered essential for indigenous biodiversity protection.”
The conservation values on the land “are represented in other protected areas in the region”
There are “no rare or distinctive species or ecosystems on the land concerned”; and
The Director-General of Conservation has recommended the disposal of thew land concerned.
Over and above this there would be some land categories excluded, which make up the 40% mentioned by Mountain Tui and Melanie Nelson. Additionally, the Minister would have to consider certain factors, including the financial implications for the Crown. Finally, you guessed it, the Minister would make the final decision.
All this detail is at available at pages 236 and 237 of 249 in the first document dump. These pages are not text searchable, unlike adjacent pages.
For me, even if these proposals would not result in disposals chipping away at the conservation integrity of our public conservation lands, or were not open to abuse as a means to simply keep DOC afloat, they could significantly harm access to the backcountry for hunters, fishers, trampers, climbers and others. Another electoral risk?
For me, these disposal proposals are a second case of “so far, so extraordinary”. They would alter the cultural and political settlement for conservation land. Again readers can make up their own minds.
The Exchange Situation Now and Recently
Exchanging public conservation land is not easy. Exchanges of marginal strips can be significant for access, but most people are more interested in the exchange of stewardship areas.
One prominent exchange situation concerned a 2008 Meridian Energy proposal to build a dam on the Mōkihinui Gorge in Buller. Meridian got resource consents, but DOC appealed these to the Environment Court. Meridian then offered to swap 794 hectares of private lowland coastal Buller forest in exchange for the much smaller 225 hectare Mōkihinui Gorge. DOC weighed the values of the two pieces of land, and concluded the swap would not “enhance the conservation values of land managed by the Department and promote the purposes of [the Conservation] Act” as was required. Meridian then pulled out, citing high costs and risks.
In March 2019, then-Conservation Minister Eugenie Sage added the whole 64,400 ha Mokihinui River catchment to Kahurangi National Park. Many know and love this area for the Old Ghost Road running through it. In this way the Meridian/Mōkihinui saga proved the protective value of protective exchange laws.
A second exchange situation involved a part Cypriot and Russian-owned ski-field company called BlackFish. BlackFish wanted to obtain 196 ha in Crystal Basin in the Cragieburn Range, to add to the Porter Heights ski field, where it also planned a glitzy “Alpine village”. For this snowy high-country basin, BlackFish offered up a small 56 ha gully called Steephead Gully. Steephead Gully is near Le Bons Bay on Banks Peninsula. DOC felt both places were contained regionally significant areas, and approved the swap in March 2011, despite earlier commitments to protect Crystal Basin and hence shield it from easy exchange.
This case attracted controversy, and highlighted the strange quality in DOC’s preference for approaching exchanges as an issue “net benefit”, notwithstanding whether apples were being swapped for oranges. This approach and outcome raised questions about the nature of the “enhancement” required for a lawful, or even just intuitively legitimate, swap.
These questions came to a head in the “Ruataniwha” case, where a Hawkes Bay group wanted dam on the Tukituki River to help irrigate Central Hawkes Bay. To do this, it needed 22 hectares of the Ruahine Forest Park. This needed various special protections stripped before it could be swapped.
This case reached the Supreme Court, as mentioned above. The Supreme Court effectively treated exchanges as the disposal of one piece of land, and the acquisition of another (see it’s paras [118] to [127]). This is a bit like when you move, or swap, houses. You have to sell then buy. The Court found that if the disposal was not justified without the acquisition of scrub somewhere else, it could not be justified with that acquisition. Put another way, it was the conservation values of the 22 ha of Forest Park that mattered, not the net values across the two bits of land. And because the disposal test is high, as we have seen, the practical result was that only land with no or very low conservation value could be disposed.
The 22 hectares of the Ruahine Forest Park in issue in that case was not of no or low conservation value. As such it couldn’t be disposed. That killed the swap, which in turned helped kill the dam proposal.
The Ruataniwha case showed that DOC may at times believe in “net benefit” hand on heart, but that swaps can also be a political and bureaucratic crutch when DOC is put under pressure by other agencies, as DOC so clearly had been there. Someone else might force DOC to give away good land, making DOC want to “swap” that good land for any land elsewhere. In this way, it could come out looking better than it might have otherwise. Others too, like perhaps Ministers, can benefit from this manoevure. This crutch must be particularly useful for when DOC is forced by NZTA to get in behind roads, by powerful electricity companies to get in behind hydro schemes, by miners to get in behind mines, or even sometimes by Ministers to get in behind projects their constituents or mates might want to advance.
Perhaps due to the strength of Hawkes Bay agricultural interests, the dam and swap at issue in the Ruataniwha case have now been rekindled as a “Zombie Project” under the Fast Track. (For those interested I’ve written on Zombie projects here.)
The Supreme Court in Ruataniwha ensured that exchange laws could only be used to guarantee conservation benefit. It interrupted DOC’s “net benefit” interpretation of exchange laws, which could be used for reasons good or ill for conservation but which were more politically and bureaucratically useful.
The Proposed Exchange Situation
The government’s proposals would crystallise “net benefit” into law, including:
Assessment of the conservation values likely to exist in the foreseeable future of the land to be exchanged and land to be acquired.
Allowing exchanges to include money, which must be used on necessary improvements to the land acquired by the Crown to satisfy the Minister the exchange results in net conservation benefit.
A vague parameter as to how much money can be included.
A risk assessment.
Details can be found at 226 to 231 of 249 in the document dump.
For me, these proposals seem unnecessary altogether. If we recall that the strength of the exchange laws law is in the high disposal test, then demolishing the disposal test alone ought to do the job - and that is what is proposed.
Even if that view is wrong, the exchange proposals seem likely to see powerful business interests offer to swap high value public conservation land in exchange for scrubby rubbish and a lot of money. The money can then, and likely must then, be used to improve the scrubby rubbish - such that risk assessments can be finessed to show conservation benefit “within a reasonable timeframe”. The Parliamentary Commissioner for the Environment has warned against allowing too much money into exchanges precisely to avoid these outcomes (see from page 15 here), advice which seems to have gone unheeded.
In the exchange proposals are a third case of “so far, so extraordinary”. In this final way, the government’s proposals would alter the cultural and political settlement for conservation land.
I welcome readers’ views.
Thanks for your interest in Brenty’s Two Cents.
AB 17 September 2025
Perhaps Mr Potaka is simply draining what he and his kind see as draining the swamp