Fighting for nature
A South Island environmental lawyer who fronted the legal battle against a proposed dam in the Ruahine Forest Park says the Department of Conservation (DOC) is failing in its obligation to protect New Zealand’s natural assets. Jonathan Carson reports.
Sally Gepp was working in a tiny, second-storey office that had carpet on the walls when the case came across her desk. It was 2014 and the Forest & Bird lawyer was temporarily confined to a poky former recording studio in central Nelson.
The case was a board of inquiry into the Tukituki catchment proposal – the first step in what became known as the proposed Ruataniwha Dam in Ruahine Forest Park.
‘‘At that stage I didn’t know anything about it,’’ Gepp says.
In short, the proposal was to grant a swathe of resource consents to allow for the construction of a $275 million dam and irrigation scheme in the upper reaches of the Tukituki River catchment in Hawke’s Bay.
Forest & Bird’s national office had been alerted to the proposal by a Hawke’s Bay branch.
‘‘We had a look at it and were pretty shocked initially at the size of what was proposed and the extent of the impact on biodiversity that would be caused,’’ Gepp says.
There was also the issue of the Department of Conservation’s (DOC) unusual stance on the proposal. DOC had made a oneparagraph, neutral submission despite the fact that the proposed dam would flood conservation land and enable agricultural intensification that would adversely affect the Tukituki River.
‘‘That meant that it fell entirely on organisations like Forest & Bird and local environmental groups to actually put the case for nature.’’ From her tiny office in Haven Rd, Gepp started preparing a legal case against the proposed dam. She submitted at the board of inquiry, but the consents were granted. Forest & Bird appealed to the High Court, but the consents were confirmed with some changes to the conditions requiring farmers to meet stricter nitrogen limits. It was described as a ‘‘win for freshwater’’. That’s when the dam company, the Hawke’s Bay Regional Investment Company (HBRIC), applied to obtain conservation land in Ruahine Forest Park. HBRIC wanted to swap 170 hectares of private land for 22ha of conservation land. DOC director-general Lou Sanson approved the land swap in October 2015, saying it would be a ‘‘net gain’’ for conservation. However, Gepp says DOC was disingenuous in its reasons for granting the controversial land swap.
‘‘In this case the land that would have been given away and flooded was in the category of acutely threatened nationally and it has wetlands and habitat for threatened species like fernbird [matata] and longtailed bats,’’ she says. ‘‘The land to be acquired was bigger and has some ecological value . . . but it is essentially farmland. It’s been held by the public trust as a training farm for farm cadets for many years and it’s certainly not of particularly high ecological value. There’s no indication that DOC would have acquired that land if it wasn’t that that was the piece of land that the dam company offered it in exchange.’’
So Gepp had another battle on her hands. Once again she found herself having to go in to bat for nature, opposing the actions of DOC.
Forest & Bird filed a judicial review in the High Court challenging the land swap, but were unsuccessful. They appealed that decision in the Court of Appeal last year and won.
The Government appealed that decision in the Supreme Court, the country’s highest court, in February.
Gepp was waiting in her Nelson office on Thursday morning for the Supreme Court decision to come through. At 10.01am she received a text message from a colleague at the court in Wellington.
It said that they had won the first argument. The next text said it was a ‘‘clean sweep’’. The Supreme Court had ruled in their favour. After three years of fighting, they had won.
‘‘That was pretty exciting,’’ Gepp says. ‘‘I did spend a little bit of time rolling about on the floor.’’
Gepp says the Supreme Court decision sets a legal precedent, safeguarding the permanence of specially protected land in New Zealand.
‘‘What this decision means is that all specially protected land is now, well, just that – specially protected. We said that, of course, if the land didn’t deserve it’s specially protected status then it could be downgraded, that’s never been at issue. But what was at issue was the concept that highvalue, in this case nationally important, specially protected land, could be downgraded just because the minister wanted to do a land exchange,’’ Gepp says.
‘‘It really is going to set a precedent for the the way in which specially protected conservation land in New Zealand is dealt with. And beyond that I think there’s a real flavour in this decision of the importance of the permanence of protection of conservation land – that it’s not just protected until we find something that we like more or something that is more valuable than a piece that is desirable to a developer, like in this case the Ruataniwha Dam company.’’
She says the Government’s plan to change the law to push the dam project through will be ‘‘much harder than they might think’’.
‘‘We had tens of thousands of people marching in the streets when the Government said that they were going to allow mining in national parks and I think this has the potential to fire people up in the same way.’’
Gepp says DOC’s neutral stance on the early consent applications and agreeing to swap high-value conservation land for farmland was part of a worrying trend. ‘‘This is part of a pattern that I see all around the country, that the good work that DOC’s technical scientists do gets sidelined and silenced and political decisions are made which jeopardise New Zealand’s native species and the conservation land that they’re supposed to hold as guardians for all of us.’’
DOC and Forest & Bird stood ‘‘shoulder to shoulder’’ in opposing the Mokihinui dam and hydro station on the West Coast in 2010.
But Gepp says the Government’s drive to make money from the country’s natural resources was a ‘‘greater priority’’ than protecting them. She says there are two fundamental problems with DOC taking this attitude to conservation.
‘‘The first is it has a statutory obligation to advocate for the protection of New Zealand’s natural resources which it’s simply not fulfilling when it turns up and says we don’t mind if this happens or not.
‘‘The second issue is that the department employs some of the best scientists in New Zealand and if they’re not there saying ‘these are what the impacts are’, then the board or the court or whoever it is deciding things just doesn’t have the best information.’’
She says it ‘‘costs a fortune’’ for organisations like Forest & Bird to engage expert witnesses to testify to the environmental impacts of projects like the Ruataniwha Dam in court. The battle couldn’t have been fought without support from the Environmental Legal Assistance Fund which, Gepp says, has become ‘‘politicised’’ in more recent years.
The environment minister has taken over ultimate decision making for what’s funded and there are new criteria around giving money to groups that might delay progress on developments, she says.
‘‘Whether that funding would have been available for that case in the current climate is questionable. And when the next Ruataniwha Dam-type thing comes along, whether environmental groups are even going to be able to have a say is questionable.’’
Gepp says the fight for nature was a lot of work that she had to balance with family life and caring for her three children.
Her colleague Peter Anderson in Christchurch has played a ‘‘huge part’’ and Forest & Bird also had pro-bono support from Auckland law firm LeeSalmonLong.
Her latest fight for nature is a case against Todd Developments, which is trying to change the Auckland Unitary Plan to build up to 1000 houses near the Okura Estuary, a marine reserve.
‘‘There’s always ongoing battles,’’ she says. ‘‘I feel so incredibly lucky that I get to be involved in some of these really important and really interesting cases. I feel like, at the moment, the only place where the environment has a chance of coming out on top is in court. I feel like if I’m going to put my energy anywhere, this is a good place to be putting it.’’
‘‘It really is going to set a precedent for the the way in which specially protected conservation land in New Zealand is dealt with.’’ Sally Gepp