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:

  • 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.
  • 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.
  • 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.
  • 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:

  • 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.
  • 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".
  • 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.
  • In Buller Electricity Ltd v A-G (1995) 3 NZLR 344, economic and social benefits were deemed irrelevant to the disposal of stewardship land.
  • 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.

Comments (13)

by on March 31, 2011
Anonymous

Wow...3000 beds, that's some hostel.

by Simon on March 31, 2011
Simon

Claire,

Nice post. Excellent summary of issues. It's very disturbing, that DOC seems to be adopting an iterative process with land swap applicants. i.e. informally (and not publically) advise an applicant that their 'swap' proposal will probably be declined, then give them time to 'withdraw' it or 'place it on hold' while they try to come up with something less unpalatable.

The issue of comparing the relative conservation merits of two fundamentally different pieces of land. Landcare Ecologist Susan Walker, who I recall you mentioned, says it can't be rationally done.
Walker et al (2009)  "Why bartering biodiversity fails", Conservation Letters 2:4, 149-157 DOI: http://dx.doi.org/10.1111/j.1755-263X.2009.00061.x

It sounds like Al Morrison's decision-making document will be worth an OIA request.

by Claire Browning on April 01, 2011
Claire Browning

Wow...3000 beds, that's some hostel.

It would be, and sounds improbable, I agree. However, the source is here:

A $250 million plan for Canterbury's second-biggest ski-field could see Christchurch rivalling Queenstown for the international ski-tourist dollar.

A consortium of New Zealand and Australian investors that bought the Porters Ski Area 2 1/2 years ago wants to build European-style accommodation for up to 3000 people at the foot of the mountain and expand the 700-hectare ski area into the adjoining Crystal Valley.

The plan, which could take 10 years to complete, would include more terrain for family and intermediate skiers.

The consortium proposes a gondola up to the slopes from a car park and resort at the base of the ski area, snowmaking on the main trails and a ski trail through regenerating native beech forest down to the village for skiers at the end of the day ...

Simon, thanks for the link.

by mudfish on April 01, 2011
mudfish

(If the water were freely available...) would it be better if snow making machines, lifts and accomodation were installed in Steep Head Gully?

The diversity of the conservation estate is extremely important.

I'm guessing too that even though large contiguous areas are ideal for allowing the full natural diversity to flourish, they are also great for under-managed pests to flourish. It ought to be easier to retain the values of a large-enough(?) but more isolated lowland fragment (but I've no idea if the DOC budget stretches far enough to do much in a newly added area - I suspect not?).

My comments are from a relatively uninformed perspective - I see above that there are several better informed parties that dispute that this does represent a net conservation gain. But if the conservation argument is reasonably finely balanced and there are other DOC issues at stake (copied from a post you referred to in this post, but italics adjusted)...:

DOC functions, on which the DOC mission statement is based, are set out in section 6 of the Act. They include:

  • to manage land and resources for conservation purposes,
  • to advocate the conservation of natural and historic resources and promote the benefits,
  • to foster the use of natural and historic resources for recreation, and to allow their use for tourism.

...I can see how the decision can be justified.

by on April 04, 2011
Anonymous

hmm....repeater/reporter...almost the same if you have typing skills like mine. 

Still 2 mins on the interweb and the details of what is proposed to go there are a little clearer.....http://www.selwyn.govt.nz/services/planning/plan-changes/plan-change-25-porter-heights-ski-field/plan-change-25-porter-heights-ski-field2

by Claire Browning on April 05, 2011
Claire Browning

And a wit to match, Brendon.

Mudfish, section 6 is here. The obligation is to manage land held under the Act for conservation purposes, not other people's other purposes, and "to the extent that the use of any natural or historic resource for recreation or tourism is not inconsistent with its conservation, to foster the use of natural and historic resources for recreation, and to allow their use for tourism". Section 16A, about the exchange of stewardship land, which requires not only promotion of those purposes, but also enhancement of the conservation values of land held by the Department, is here. As signalled in the post, there will of course be room for debate about what meets those tests.

I hope that we have the debate, because this case raises an important issue, that is the same issue as the Mokihinui, where the stakes are higher. It astounds me that DOC is either blind to or wilfully ignoring the risk of the precedent. There can be no "like for like" exchange in that case, which has, to date, been a key reason for opposing it. DOC's own advice makes clear that there is no use in Meridian fossicking around, trying to scrape together miscellaneous bits of unwanted land to a sum that falls rather short.

by on April 07, 2011
Anonymous

A case with both legal and emotional threads. . .

Looking at this from a completely different angle - that of the preservation and restoration of historic buildings.  Bear with me.  The most successful formula for on going preservation of hiistoric buildings is when they are used.

Some areas of fauna and landscape appear incompatable with human presence - unless that is a human presence of self appointed "gaurdians".  But for the majority human presence is going to give meaning, understanding and value.  Much it does for historic buildings.

by Simon on May 03, 2011
Simon

Claire,

My OIA request to the Minister were answered on Friday, after 19 working days. They sent me the DOC report to Al Morrison (DOC_report-to-Morrison-Blackfish-21-02-2011.pdf ) and Al Morrison's decision on the landswap (Morrison-Blackfish-11-03-2011.pdf).
I have scanned them and uploaded them to Google Docs.

DOC_report-to-Morrison-Blackfish-21-02-2011.pdf  7749KB
https://docs.google.com/viewer?a=v&pid=explorer&chrome=true&srcid=0B8LhM...

Morrison-Blackfish-11-03-2011.pdf 1778KB
https://docs.google.com/viewer?a=v&pid=explorer&chrome=true&srcid=0B8LhM...

Things that stand out on my first reading.

1. Crystal Valley is not conservation stewardship land under the Conservation Act. The Nature Heritage Fund purchase, the  surrender of the pastoral lease and the transfer to DOC have not been completed.  Crystal Valley is still crown land with a pastoral lease held by Castle Hill Station and administered by LINZ. see para 8.1, page 7 of the DOC report to AL Morrison.

2. When Crystal Valley is gazetted as land held for conservation purposes, which is the intention Chris Carter signed up for, it will also be gazetted as a conservation park under s 18 of the Conservation Act. Which is the whole point of plugging the gap between Korowai/Torlesse Park and the Craigieburn Park. A conservation park cannot be swapped.  So DOC have put a paper to Kate Wilkinson to have Crystal Valley not gazetted as conservation park.

3. Under section 16A of the Conservation Act, http://www.legislation.govt.nz/act/public/1987/0065/latest/DLM104281.html ,  DOC has a discretion to swap 'stewardship land' (land held for conservation purposes but not classified as conservation park or wildlife area (see section 2 Interpretation)  Arguably, DOC has no jurisdiction to swap crown land under pastoral leases.

4. Given the arguable lack of jurisdiction, why did DOC engage in a lengthy iterative process with Blackfish? Why didn't DOC say to Blackfish "We can't look at your landswap application, we have no authority over Crystal Valley until it is legally held for conservation".

4. The two specialist biodiversity reports commissioned by DOC (one by DOC botanist Nick Head, the other by consultant Markus Davies) concluded that the land swap would result in a net loss of biodiversity.

5.However, through a use of further offers of easements and encumbrances on Crystal Valley back to DOC, deft prose and dense matrices/tables, the report to Al Morrison concludes that the swap will "enhance the conservation values of land managed by the Department".

6. Consultation with Ngai Tahu and the Aoraki/Canterbury Conservation Board look formalistic. "We told them what we were doing and we ignored their response". Definitely not following the Kaikoura whalewatching case.

by Claire Browning on May 03, 2011
Claire Browning

Simon, many thanks. I'll review those with interest. I put in a request of my own, too.

by on May 21, 2011
Anonymous

The proposed Crystal Valley land swap is the latest in a string of signals that the era of monopoly government control of the conservation estate needs to come to an end in New Zealand.  It is time for the citizens of New Zealand who care about this issue to wake up and realize that the government is not necessarily going to be on your side going forward.  In many cases, the fox is truly guarding the chicken coop.

This awakening happened decades ago in the United States and one result has been a thriving private land conservation community.  Such a community is still in its infancy in New Zealand, but is best represented by the Banks Peninsula Conservation Trust, a non-profit charitable trust that only 8 years ago became the first non-government organization to place covenants onto land titles.

This is a movement that needs to accelerate; there should be dozens of organizations like BPCT around the country willing not only to covenant but also to own conservation properties.  I would encourage the immediate incorporation of a new organization called the "High Country Conservation Trust", and would be happy to invest into it.

To be clear, the government is not the enemy, it should simply be viewed as something less than perfect.  As such, it should not be granted monopoly control of something this important.  In the vast majority of cases, private conservation organizations work in partnership with and are complementary to governmental efforts.  When needed, however, they can offer oversight and an important check on the unilateral power of that government.

The ideal outcome for any conservation property is what we in the US call a "belt and suspenders" approach.  This approach involves one conservation entity (public or private) owning the land and another owning a covenant over it.  This prevents any single bad actor undermining the conservation values of the property.

I am less concerned about the specifics of the Crystal Valley deal than I am about the precedent being set.  It is like putting a big "for sale" sign on the conservation estate.  It would be naive to think that other investors will not take notice, and that economic interests will not continue to win out over conservation interests in the long term.

Citizens of New Zealand, the time to organize is now, before it is too late.

Doug DeAngelis
Ipswich, Massachusetts, USA and Oashore, Little River, Banks Peninsula

by Simon on June 01, 2011
Simon

Claire,
today I received a copy of "Submission to Minister of Conservation to release Crystal Basin from forest park intention of previous Minister";  (http://bit.ly/iM8CkN) and, yes, the Minister as signed it.

by on September 26, 2011
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