The National Policy Statement for Indigenous Biodiversity 2023 (‘NPS-IB’) was gazetted on 7 July 2023, and comes into force on 4 August 2023. This follows consultation on an exposure draft version which was released in June 2022.

The overall objective of the NPS-IB is to maintain indigenous biodiversity across Aotearoa New Zealand so that there is ‘at least no overall loss in indigenous biodiversity after the commencement date’. It applies to the terrestrial environment only (as policy direction for biodiversity in the coastal marine area and freshwater is provided by the NZ Coastal Policy Statement (NZCPS) and National Policy Statement on Freshwater Management (NPS-FM), respectively).

The provisions of the NPS-IB are wide-ranging, but it has a particular focus on the identification and protection of significant natural areas (SNAs) through RMA plans. Unless one of a handful of exceptions applies, the NPS-IB directs that adverse effects on SNAs (such as loss of extent, fragmentation, disruption to ecosystem function) must be “avoided” in RMA decision making.

As such, the implementation of the NPS-IB is likely to be controversial. A number of councils have proposed SNA restrictions through their district plans in recent years, but often subsequently walked them back due to public outcry. That debate is set to be reignited, as all territorial authorities will now be required to assess and identify SNAs within their district (whereas previously it was voluntary).

Key changes from the exposure draft version of the NPS-IB include that:

• The fundamental concept from the exposure draft – Te Rito o te Harakeke (which referred to the need to maintain the integrity of indigenous biodiversity, and the exposure draft directed that indigenous biodiversity be managed to give effect to the concept)) has been removed.
• There is now a carve-out for renewable electricity generation and electricity transmission, such that the NPS-IB does not apply to activities involving those assets (presumably because policy direction on biodiversity in relation to those activities will be provided in their own national policy statements, which are currently under review). The NPS-IB is expressed as being subject to the NPS-FM (in addition to the NZCPS).

How are SNAs identified?

For the purposes of the NPS-IB, an SNA is defined as either:

• Going forward, an area that is notified or included in a district plan using the process and criteria in Appendix 1 of the NPS-IB.
• As an interim measure, any area that is already identified in an (operative or proposed) policy statement or plan as an area of significant indigenous vegetation or significant habitat of indigenous fauna (this status applies unless or until a qualified ecologist engaged by the council determines otherwise; councils are also required to confirm within four years that the methodology followed in the earlier identification of the SNA was consistent with the NPS-IB).

Accordingly, unlike comparable directions in other national policy statements, the SNA provisions of the NPS-IB will only apply to areas that have been identified as such in an operative or proposed plan (although other provisions of the NPS-IB do apply to indigenous vegetation outside of SNAs). On the other hand, those provisions will apply as soon as a new plan or plan change identifying a proposed SNA is notified, giving that identification immediate effect (rather than being delayed until a decision is made or the plan becomes operative).

The NPS-IB requires district councils to undertake a district-wide assessment to identify areas that qualify as SNAs (clause 3.8(1)), in accordance with Appendix 1. The assessment required under Appendix 1 must be carried out by a suitably qualified ecologist, applying familiar criteria such as representativeness, rarity and distinctiveness. Throughout the assessment process, councils are required to keep landowners and tangata whenua informed and make relevant information and assessments available to them for review.

Notably however:

• There are no automatic limitations or exemptions associated with the size of the area, private ownership, or similar; and
• Once the assessment has been carried out by the ecologist, there is no residual discretion on the part of the council to decide to not confirm the identified areas as SNA.

As such, these requirements can be contrasted with those in the National Policy Statement for Highly Productive Land (NPS-HPL), which allows councils slightly more discretion in identifying areas as ‘highly productive land’ (including where the land area is small, or is already identified for future urban development).

Once proposed SNAs have been identified, councils are required to notify a plan change to formally include those areas in their district plans, within 5 years of the NPS-IB coming into force.

Landowners will be able to get involved in this process in two ways:

• Clause 3.8(3) provides that if a landowner disputes the extent or values of a proposed SNA that applies to their land (after the ecologist’s assessment), then the territorial authority must, if practicable, undertake a physical inspection.
• Plan changes to include SNAs in district plans are likely to be public notified, meaning anyone can make a submission. However, given the relatively inflexible approach to identifying SNAs through the NPS-IB, submitters are unlikely to be successful in challenging proposed SNAs without producing their own ecological assessments.

Onerous ‘avoid’ directions in the NPS-IB

Once an area is formally identified as an SNA, it is subject to very onerous ‘avoid policies’ (cl 3.10) which severely restrict development, unless one of the exceptions (in cl 3.11) applies.

There is a list of adverse effects on SNAs (through subdivision, use and development) which must be ‘avoided’ (not merely ‘mitigated’ or ‘offset’), which includes matters such as loss of ecosystem extent, disruption of ecosystem function and fragmentation of SNAs (clause 3.10(2)). In practical terms, this means resource consent applications for such activities will be declined.

Exceptions for infrastructure and mining

The limited exceptions to the general ‘avoid’ direction include the following activities:

• Construction or upgrade of ‘specified infrastructure’ (defined to include infrastructure such as lifeline utility infrastructure, regionally significant infrastructure or defence facilities) that provides significant national or regional public benefit (clause 3.11(1)(a)(i)).
• ‘Mineral extraction’ that provides significant national public benefit that could not otherwise be achieved using resources within New Zealand, except for coal mining (clause 3.11(1)(a)(ii)).
• ‘Aggregate extraction’ that provides significant national or regional public benefit that could not otherwise be achieved using resources within New Zealand (clause 3.11(1)(a)(iii)).
• The operation or expansion of any coal mine that was lawfully established before 7 August 2023 (after 31 December 2030, this exception applies only to such coal mines that extract coking coal) (clause 3.11(1)(a)(iv)).

However, in each case, it will be necessary to show that:

• There is a functional or operational need for the activity to occur in that particular location; and
• There are no practicable alternative locations for the activity; and
• The effects of the activity can be managed in accordance with the ‘effects management hierarchy’ (as defined in the NPS-IB).

Some of these requirements are likely to be difficult to meet, even where a potential ‘consenting pathway’ is provided. Where these requirements are already imposed by other policy statements, it can take months or even years to assemble the evidence necessary to demonstrate:

• that there is a functional or operational need for an activity,
• that there are no practicable alternative locations, or
• effects can be managed in accordance with the ‘effects management hierarchy’.

Even the prospect of having to pass these tests, and the uncertainty/cost/delay they add, can be enough to deter applicants.

These tests are also more stringent than equivalent provisions in NPS-HPL, which for example does not include requirements for specified infrastructure to show a significant national or regional benefit, or for all excepted activities to show that there is no practicable alternative location. 

As noted earlier, electricity transmission and renewable electricity generation are entirely exempt from the NPS-IB (and not classed as ‘specified infrastructure’ in this context).

Exception for residential dwellings

A separate exception is provided for the use and development of land associated with a single residential dwelling on an allotment that was created before the commencement date (cl 3.11(2)).  For this exception to apply, it is necessary to show that there is no other practicable location for the dwelling on that allotment, and to apply the effects management hierarchy. 

Separate pathway for forestry 

‘Plantation forestry’ activities (which have the same meaning as in the National Environmental Standards for Plantation Forest) are also exempted from the ‘avoid’ directions in cl 3.11, with bespoke policy direction being provided in clause 3.14.

That clause provides that the adverse effects of plantation forestry activities on SNAs in an existing plantation forest must be managed in a manner that maintains indigenous biodiversity in the SNA as far as practicable, while providing for plantation forestry activities to continue. In addition, any part of any an SNA that is, or is intended to be, planted in trees for harvest needs to be managed in a way that maintains the long-term populations of any Threatened or At Risk (declining) species present in the area. 

If an SNA is both within specified Māori land and a plantation forest, it is managed as a plantation forest rather than specified Māori land.

Other requirements – regional biodiversity strategies

The NPS-IB also requires every regional council to prepare a ‘regional biodiversity strategy’ within 10 years of the commencement date, which must be then had regard to by councils when preparing policy statements and plans.

A regional biodiversity strategy is intended to promote the landscape-scale of restoration of the region’s indigenous biodiversity, and must meet a number of criteria set out in Appendix 5.

Related consultation – biodiversity credit system

The Government is separately proposing a new ‘biodiversity credits’ system, which could complement the NPS-IB ‘by recognising landholders who protect and restore nature’. The proposals are outlined in a discussion document released on the same day as the NPS-IB, with feedback sought by 3 November 2023.

In essence, a credits system would allow landowners to earn credits for protecting, restoring and enhancing native ecosystems. Private companies (e.g. project developers) could then buy those credits to be able to claim a positive impact.

Depending on how this system is designed, these credits could conceivably be used to help satisfy the offsetting and compensation components of the effects management hierarchy in the NPS-IB (and related national policies). However, the credits system may not meet the ‘landscape context’ principle of the offsetting and compensation Appendices (3 and 4) of the NPS-IB as currently framed, because the credit purchaser (the developer) may have little control over, or knowledge of, where the offsetting occurs. 

Next steps

SNAs are now set to be rolled out in district plans around the country over the next five years. If you would like any assistance with submitting on SNA provisions, or in understanding the potential implications of the NPS-IB, please do not hesitate to get in touch with us.