'Goodbye Freddy'

These two words set a dangerous precedent in Aotearoa New Zealand, where there is no biodiversity to spare. By Dr Manu Davison

Sometimes an utterance from a politician becomes embedded in the lexicon of Aotearoa New Zealand. Surely a classic will be the strident claim by a government Minister “if there is a mining opportunity and it’s impeded by a blind frog, goodbye, Freddy.” 

The huge amount of work carried over the past four decades to conserve our natural resources and protect biodiversity can be undermined and potentially dismantled with such a comment. 

The frog named as Freddy is pepeketua Archey’s frog Leiopelma archeyi – an ancient species, endemic to Aotearoa, and threatened with extinction. 

Dr Manu Davison is a conservation ecologist, animal behaviourist, and resource management consultant who is passionate about wildlife and enjoys photographing birds and invertebrates.

In disassembling Minister Shane Jones’s “Goodbye Freddy” comment, the basis of its intention, or warning, is that the survival of Aotearoa’s smallest native frog, or some other insignificant species, is usurped by the priority to extract a natural resource for the benefit of the economy. 

Unfortunately, making a flippant comment about a threatened species, considered an irritant to economic progress, disregards the underlying importance of sustaining and conserving all native biota for the benefit of both humans and biodiversity. 

As far as providing ecosystems services, all species are an important element within the network of ecosystems – no matter how small or inconspicuous they are. 

Many important statutory tools that ensure the protection, diversity, and sustainability of wildlife and natural resources are under review as part of proposed fast-track restructuring of the way we consent major economic developments, such as roads, dams, and mines. 

The government’s main target is the Resource Management Act 1991 (RMA). It was enacted after extensive review of a convoluted array of local government and territorial authority laws, including numerous Town and Country Planning Acts. 

The RMA integrated the management of all natural resources – freshwater, air, marine, minerals, flora, and fauna – into one statute.

NATIONALLY CRITICAL: The amber snail, Succinea archeyi, is endemic to the north-east of the North Island. It inhabits coastal dunes but has seen a “precipitous decline” over the past 150 years, according to DOC, following the loss of native dune vegetation and introduced predators. Image Euan Brook

This provided territorial authorities and consenting agencies a statutory mechanism to ensure there was a consistent approach to setting policies, objectives, and rules as to how these natural resources and wildlife were managed, protected, maintained, and – where appropriate – exploited. 

This means our terrestrial, freshwater, and marine environments are generally regulated and managed with just two statutes, the Resource Management Act and the Building Act. 

There are other laws that regulate the use of specific assets, such as fisheries, but the RMA has an overarching role in ensuring the sustainable use of natural resources and the maintenance of our biodiversity (flora and fauna). 

There have been amendments to the RMA, and additional National Policy Statements, but the Act has remained the main process for regulating economic development for more than 30 years. 

Owing to the resilience of the RMA, and its wellconceived statutory structure, it has withstood many attempts to replace it. The most ambitious was under the previous government, which proposed replacement with three new Acts: the Spatial Planning Act, the Natural and Built Environment Act, and the Climate Adaptation Act. 

The coalition government has scrapped the intention to introduce these three Acts, which leaves the RMA intact at this stage.

FORGOTTEN SPECIES: The red admiral butterfly was once common in Tāmaki Makaurau, but today it is rarer than ruru. There are other red admirals in the world, but New Zealand’s endemic species, known as kahukura or red cloak, is said to be the most beautiful. Image Angela Moon

WHERE NEXT FOR THE RMA? 

There will be an inevitable drawn-out process the current government will go through to repeal the RMA. 

It knows there will be a significant cost to doing this and is on record as saying, “the RMA is broken, but any reform of the RMA must actually improve things and be worth the considerable cost of change”. 

The cost of change is one reason the RMA has survived so many attempts at reform. Another reason may be that the essence annd workability of the RMA is robust. 

While the replacement legislation is in progress, the RMA continues to be in place, and my concern is about how it is being applied today. 

There has been an erosion of the protective requirements contained in the hierarchy of actions the Act demands when a resource consent is given to use or impact a natural resource. 

“Every person has a duty to avoid, remedy, or mitigate any adverse effect on the environment arising from an activity carried on by or on behalf of the person…,” according to section 17 of the RMA. 

Section 17 provides a clear hierarchy of how any activity will directly and potentially impact/effect a natural feature (resource) or biodiversity – avoid first, then remedy, and finally mitigate. 

The requirement is for any activity, such as an application for resource consent, to assess effects by starting at the beginning of the hierarchy, and, if the assessment concludes the activity will cause significant environmental effects, it should be avoided.

RANGE RESTRICTED: The robust grasshopper Brachaspis robustus is only found on the edges of braided rivers in the Mackenzie Basin. With 250–1000 mature adults, our largest endemic lowland grasshopper is nationally endangered. Its threats include habitat loss, a warming climate, and predation. Image Danilo Hegg

Moho pereru banded rail. Image Neil Foster

The most referenced legal case to support this requirement is “King Salmon”, a decision of the Supreme Court in 2014. The case had been brought by the Environmental Defence Society Inc against the New Zealand King Salmon Company Limited after it sought resource applications for fish farming at various sites throughout the Marlborough Sounds. 

The Court found the higher the ecological value of the resource being protected, the more likely a development will be inappropriate because of the clear negative effects. In other words, “avoid” means not allow or prevent the occurrence. 

This sent a clear message that the hierarchy should be followed. It also provided a warning to prospective applicants seeking resource consent to fully assess obvious and potential adverse effects of a proposed activity. If it is clear that an activity should be avoided, it would not be sensible to progress to the next levels of the hierarchy, which are remedy or mitigate. 

But the RMA hierarchy “avoid, remedy, or mitigate” has progressively been expanded over the years to include biodiversity offsetting and even further to include compensation. These additions have been highly contentious as they can be considered non-statutory in the sense of duty under section 17 of the RMA. 

Changes to the RMA hierarchy are being implemented by stealth rather than by a transparent and statutory process.

CLIMATE HEROES: Providing vital habitat and nurseries for coastal wildlife, saltmarshes also protect coastal communities from severe storm impacts and rising sea levels. Pictured: Forest & Bird’s Pāuatahanui Reserve, near Porirua. Image Caroline Wood

DANGEROUS PRECEDENT 

Biodiversity offsetting is a relatively new tool being used where it is inevitable that wildlife will be impacted by an activity after the effectiveness of all three of the RMA-mandated management options (avoid, remedy, or mitigate) have been exhausted. 

Offsetting is used where there will be a residual negative effect, such as loss of habitat where native vegetation has to be removed. In this case, a like-forlike receiver site is found that is the same as, or similar to, a site being unavoidably damaged. 

An example of this might be when some land as close as possible to an impacted mine site may be revegetated or habitat established for displaced species, such as an endemic land snail. Other recent examples in Aotearoa include the Albany to Puhoi motorway and Transmission Gully, north of Wellington, where wetlands were destroyed and new ones created along the road. 

Biodiversity offsetting has a caveat that it should only be considered after actions to avoid, remedy, or mitigate a natural feature or wildlife (both flora and fauna) are assessed. 

Furthermore, offsets are only to apply to “residual” biodiversity impacts. Residual means the absolute minimum damage at the end of a consented activity. It is not a starting point for applying the hierarchy of the RMA. 

Unfortunately, adding offsetting to the hierarchy has provided planning tools that can potentially result in biodiversity being seen as residual from the start of the application. 

For some activities, right from the beginning, it is obvious there are going to be negative impacts. Therefore, an applicant could argue such negative impacts cannot be avoided for a proposed activity that is part of critical infrastructure, and an offset approach should be the first step. 

There have been examples where habitat for species has been destroyed in the coastal marine area, such as marina development, where developers have been allowed to build in areas inhabited by little penguins, forcing them to find new places to live and breed.

ECOLOGICAL ENGINEERS: Beetles and other macroinvertebrates are critical for the health of our ecosystems. Stag beetles like this one recycle and break down dead wood and return nutrients to the soil. Pictured: New Zealand reticulated stag beetle. Image Bryce McQuillan

Allowing a precedent of applying offsets at the beginning of an activity has negative consequences for biodiversity and disregards the importance of applying statutory controls and environmental oversight. Precedents have the insidious tendency to quickly become approved practice. 

In 2014, the Department of Conservation provided a disclaimer about biodiversity offsetting that says: “In preparing the Guidance it is recognised that the use of biodiversity offsetting as a policy and consenting tool is new and evolving; particularly under the Resource Management Act 1991, and that it is not possible to predict the challenges and lessons that each new offsetting proposal will bring.” 

Reviews of biodiversity offsets show they have not been fully developed and are not embedded in the statutes that protect biodiversity. There is a risk poorly developed and implemented approaches and use of biodiversity offsetting will contribute further degradation of ecological values and the decline in threatened species. 

In conclusion, current legislation and precedent, including RMA directives and the King Salmon case, would suggest no native species falls under the category of “Goodbye Freddy”. 

Although Minister Jones’s comment was flippant and made within the political maelstrom of Parliament, it requires public, scientific, and political scrutiny.

FANTASTIC FUNGI: Another taxa that goes under the radar, New Zealand’s diversity of fungi provide many important ecoystem services, including decomposition leading to recycling of nutrients. And they come in cool colours too. Image Bryce McQuillan

He is a powerful figure, in charge of important environmental portfolios, including Minister for Oceans and Fisheries, Minister for Regional Development, Minister for Resources, Associate Minister of Finance, and Associate Minister for Energy. 

Do his comments mean the government believes any native species, no matter how threatened, are dispensable when Ministers decide an activity critical to economic growth takes precedent? 

Furthermore, in July, the Attorney-General, Judith Collins, warned the government against rushed law-making. She directed the government to follow proper policy-making and legislative processes as it progresses fast-track changes to the RMA and other statutory legislation. 

“The time needed to deliver good legislation is often underestimated,” she said. “This results in time pressure and can have a critical impact in multiple areas, including clear identification of the policy objective, good policy development, and the processes to test and quality assure legislation to minimise the risk of errors and unintended consequences….” 

These are many wise words in this directive, with the most pertinent being “minimise the risk of errors and unintended consequences”. 

There is no biodiversity to spare in Aotearoa New Zealand. Appealing robust and well-established legislation via a fast-track approach will inevitably result in negative impacts on biodiversity and the environment. 

With the government indicating the RMA is broken, and a rapid process required to install policies that will allow fast-tracking of applications and resource consents, a government Minister saying, “Goodbye Freddy”, establishes a dangerous precedent.