In 2004, the Nature Heritage Fund funded DOC’s Crystal Valley purchase, because of its outstanding conservation values. Last week DOC agreed to give part of the Valley, freehold, to Porter Heights Ski Field, to build an alpine lodge. What’s changed?
Crystal Valley’s conservation values have not changed, although there is some dispute about whether, paradoxically, conservation might be improved, by getting rid of it.
Government policy, on the other hand, clearly has changed, and the latest Valley decision helps join a few more of those dots.
Purchased by the Nature Heritage Fund in 2004, on terms that included permanent protection, Crystal Valley will now be alienated, on terms still being negotiated by DOC, but that involve the building of a 3,000 bed alpine lodge, plus infrastructure.
DOC Director-General Al Morrison said on March 23 that he had agreed in principle to the land exchange, subject to terms of agreement. Under the proposal, DOC will exchange 198 ha of conservation land in Crystal Valley for a 70 ha forest block on private Banks Peninsula land known as Steep Head Gully, and the surrender of some other land formerly leased by the ski field. The deal is to be signed “within the next few months”.
Here is the Crystal Valley. Below is Steep Head Gully (photo credit: Peter Langlands):
And here is a previous post of mine, about land exchange. Under section 16A of the Conservation Act, the Minister shall not authorise any such exchange unless satisfied that it will enhance the conservation values of land managed by DOC, and promote the purposes of the Conservation Act. According to case law, the Minister is not allowed to consider social and economic factors.
But according to Mr Morrison, this particular Crystal Basin decision will do exactly that: enhance conservation values. “Protecting remaining coastal forests blocks like Steep Head Gully is a conservation priority -- bringing this forest under public ownership improves the quality and the extent of land DOC manages. With public access and conservation values also preserved in the Porters Valley, the overall impact of this proposal is a net gain for conservation,” he says in his press statement.
Defending his client’s proposal to Canterbury-Aoraki Conservation Board, the Porter Heights Ski Field advocate sets out the factors [from p 13] that evidently persuaded DOC, but not, in the end, the Board:
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The Steep Head Gully site includes 56 hectares of old growth podocarp forest, unable to be logged in the 1860s, because of the steepness of the site. This is right on the coastal margin and is virtually unique on Banks Peninsula. It was an area recommended for conservation protection in 1992, but for various reasons, that still hasn’t happened.
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Banks Peninsula’s protected ecosystems are currently biased towards high-altitude forest, not coastal forest. Protection of these types of lowland coastal ecosystem is included in the National Biodiversity Strategy and is a national priority.
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Steep Head Gully is home to some rare and threatened species, and a relatively intact sequence of coastal plant communities, right through to hardwood podocarp. This was an opportunity to protect it from sheep grazing and possum browsing.
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The exchange offers a "net conservation gain" because, by contrast, Crystal Basin is one of another 51 similar basins in the area and one of forty managed by DOC.
He also offers this illuminating aside, that I really hope he just made up:
It is also consistent with where the department is going in the future which is trying to create win/win situations where anyone who can show they are improving the conservation estate and provide a significant recreation opportunity as well as providing employment can make the process. Although we know those issues don’t have to be considered under the conservation umbrella.
But the Board disagrees, accusing DOC of “bending over backwards” to satisfy Porter Heights, and saying that there is no net conservation gain.
Advice from the Board dated August 4, 2010 (reproduced on Forest & Bird's website) includes these key points:
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Crystal Valley was purchased by the Nature Heritage Fund because of its outstanding conservation values. The August 2010 Boffa Miskell Canterbury Landscape Review locates it in an Outstanding Natural Landscape. Currently the land is stewardship land, but that does not mean it is not valuable; just that it has not been categorised.
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It is "in a natural and pristine state". Porter Heights' proposal would create "an island of private land in an otherwise coherent and contiguous conservation area flanking the Waimakariri Basin". DOC's Assessment of Ecological Values describes it as in "original condition", "an excellent example of an alpine cirque basin ecosystem", and agrees with Boffa Miskell's judgement that it is "close to pristine". According to DOC in 2004, it was "an unbroken and unmodified altitudinal sequence of ecological habitats"; it was "important to retain the Craigieburn Range as an ecological and public asset".
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The Natural Heritage Fund requires national protection criteria to be met, and legal protection to be permanent. DOC’s undertaking, in its successful application for funding, would be breached, were this land alienated.
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In Buller Electricity Ltd v A-G (1995) 3 NZLR 344, economic and social benefits were deemed irrelevant to the disposal of stewardship land.
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As the Crystal Valley was recently sought by and transferred to DOC for conservation purposes, it should be concluded that those purposes remain.
The Board recommended that the proposal, as it stood at that time, should be declined. On reapplication, despite the applicants' best efforts set out above, it remained opposed.
Forest & Bird's legal advice was to similar effect: that the land exchange "cannot possibly meet the tests set out in 16A of the Act". According to spokesperson Nicola Vallance, the land that DOC now says it will get in return, which will provide a "net benefit to conservation", is already protected by the district plan, and its topography.
Forest & Bird is considering its legal options, for a review of the decision.
It has been a bit of a tortured process. In September, following a high level meeting between Porter Heights and DOC, the land exchange application was put on hold, while they explored other options (their initial exchange proposal having been rejected).
In this, the process has some worrying echoes of Meridian's Mokihinui Hydro Proposal, and that was the Conservation Board's other concern, about the risk of this case being a precedent.
Crystal Valley is, arguably, a clash of commerce with conservation, but it is not just about that, but also what “net conservation gain” means. Is that the same as the legislative language, “enhancing the conservation values” of DOC-managed land? Doesn't one imply growth, the other trade-offs? How do you compare the relative merits to conservation of two fundamentally different pieces of land?
Forest & Bird is, therefore, turning to the inarguable fact that one piece of land has been safe enough (on the applicants’ own account) since 1860; the other will be transformed, from pristine to developed.
It needs to be really clear that DOC is not the target here. Having received the land exchange application, they have to make a case by case judgment; the judgment in this case was particularly difficult, and may yet be further tested in court.
All the same, it seems another part of the new business-friendly panorama -- its outlines sketched in DOC's latest statement of intent, Mr Morrison’s speech last year, perhaps, too, Lake Ellesmere and the Mackenzie Basin -- that is not pretty for conservation.
It's a bit like the relative merits of the land exchange. You can argue about whether the outcome is worse, but there is no doubt it is different. It brings with it a new risk: that in the end, whatever the practical outcome, something is lost, because intrinsic value (as Gerry Brownlee found out) is not about the trade-offs. To suggest that it can be, or has to be, is a quantum shift in conservation philosophy, about which we have been told, but not consulted.
