Home | Databases | WorldLII | Search | Feedback New Zealand Journal of Environmental Law

Meyer, Dr Victor --- "Soil conservation legislation development in New Zealand: implications for enviromental policy and planning" [2022] NZJlEnvLaw 11; (2022) 22 NZJEL 245

New Zealand Journal of Environmental Law

Soil conservation legislation development in New Zealand: implications for enviromental policy and planning [2022] NZJlEnvLaw 11 (31 December 2022); (2022) 22 NZJEL 245

Last Updated: 14 May 2024

245

Soil Conservation Legislation Development in New Zealand:

Implications for Environmental Policy and Planning

Dr Victor Meyer*

Soil conservation takes an anthropocentric, utilitarian approach to policy and planning, whereas soil preservation takes an ecocentric or nature-centred approach. The Resource Management Act 1991 (RMA) replaced more than 50 Acts (including amendments) relating to land, water and air, and both the RMA and accompanying environmental reforms of the late 1980s to early 1990s were responsible for bringing sustainability and integrated environmental management into the planning and resource management systems so that cumulative effects could be taken into account, rather than managing one resource while overlooking a knock-on effect on another. Government subsidies to help farmers conserve soils were stopped in the mid-1980s when free- market economic policies were introduced. The Ministry of Works and Development was disestablished pre-RMA as part of moves to devolve some elements of centrally controlled planning to local governments. As part of these reforms, the catchment boards of the earlier eras (governed mainly by the Soil Conservation and Rivers Control Act 1941) were decommissioned to make way for regional councils, and as a result, the soil scientific expertise was largely lost. Consequently, soil quality in New Zealand has been deteriorating ever since. This article argues for a return to catchment boards, or similar entities for soil management, but with a more ecocentric orientation and guiding philosophy. It is also

*Dr Victor Meyer, ND, NHD, MTech, PhD, GradDipTchg, PGCertEnvMgt alumnus, Department of Environmental Management, Lincoln University, New Zealand. Email: victormeyer@iname.com.

recommended that future resource management legislation be nature- centred, and that anthropocentric notions be revised to improve soil health and ensure better outcomes for the environment.

1. INTRODUCTION

Soil quality is an important indicator of environmental health.¹ Soil needs to be protected as both an organic (carbon-rich, microbe-laden detritus) and an inorganic (weathered rock particles, minerals, water, air) medium for supporting vegetative growth and dependent invertebrate and vertebrate biota, including humans.² Land is related to soil, but refers more to area in a geographical context.³

Since 1940, soil management legislation in New Zealand has had far- reaching implications for environmental planning. Soil erosion was a primary concern,⁴ and so soil conservation laws were put in place to mitigate the effects of poor land-use practices, including unsustainable farming, on water bodies. Apart from intrinsic reasons to preserve soils, soil also requires protection for agrarian purposes.⁵ New Zealand is in the process of an environmental transformation, pending the repealing of the Resource Management Act 1991 (RMA) and replacement with new resource management legislation. The question is, to what extent should the law be ecocentric, and should the pre- RMA laws and/or their agencies be brought back?

Much of New Zealand’s ploughable soil, especially in the South Island, comes from the weathering of loess or windblown (primarily) silt strata of Pleistocene glacial origin, which can reach up to 18 metres in thickness.⁶

Soil conservation is defined as sustainable utilisation of soil, whereas soil preservation is the protection of soil from any type of use, eg in wilderness

1. LR Lilburne, AE Hewitt, GP Sparling and N Selvarajah “Soil quality in New Zealand: Policy and the science response” (2002) 31(6) J Environ Qual 1768

<doi.org/10.2134/jeq2002.1768>.

2. EP Odum Fundamentals of Ecology (3rd ed, Saunders College Publishing, Philadelphia, 1971); NA Fromherz “The case for a global treaty on soil conservation, sustainable farming, and the preservation of agrarian culture” (2012) 39(1) Ecol Law Q 57 <www.jstor.org/stable/24113489>.
3. N Myers (ed) The Gaia Atlas of Planet Management (Pan Books, London, 1987) at 22.
4. AS Mather “The changing perception of soil erosion in New Zealand” (1982) 148(2) Geogr J 207 <doi.org/10.2307/633772>.
5. Fromherz, above n 2.
6. A Goudie The Nature of the Environment (2nd ed, Blackwell, Oxford, 1990) at 101.

areas.⁷ Soil issues (adverse effects on soil) in New Zealand include erosion, loss of carbon and organic matter, compaction and compromised soil structure, nutrient loss, acidification and agro-industrial contamination.⁸ Most notable of these is erosion, including surface erosion (sheet, rill, gully), mass movement (landslides or slips, earthflows, slumps), fluvial (stream-related) and streambank (riparian) erosion, due to various land-use practices.⁹

2. METHODS

The main method to gather data for literature review purposes was through internet searches, using the Google search engine. Search phrase strings entered were, eg <soil conservation in new zealand>, <soil conservation planning shortcomings nz> and <soil conservation vs soil preservation>. On Google Scholar the strings <soil conservation policy and planning nz> and <soil conservation and soil preservation> were employed for searching articles (not case law).

Soil keyword searches across New Zealand laws (Acts) at the <www. legislation.govt.nz/act/results.aspx?search=qs_act_soil_resel_25_h&p=1> URL were abandoned for “false” positives, as some Acts refer copiously to the Soil Conservation and Rivers Control Act 1941, for instance. A subsequent

7. PC Baveye, J Baveye and J Gowdy “Soil ‘ecosystem’ services and natural capital: Critical appraisal of research on uncertain ground” (2016) 4(41) Front Environ Sci 1 <doi.org/10.3389/fenvs.2016.00041>; N Carter The Politics of the Environment: Ideas, Activism, Policy (3rd ed, Cambridge University Press, Cambridge, 2018).
8. DP Grinlinton and KA Palmer “Integrating sustainability into water and soil conservation — the New Zealand model” (paper presented to 15th International Soil Conservation Organization Conference, Budapest, 18–23 May 2008) <tucson. ars.ag.gov/isco/isco15/pdf/Grinlinton%20D_Integrating%20sustainability%20 into.pdf >; A Collins, A Mackay, L Basher, L Schipper, S Carrick, A Manderson, J Cavanagh, B Clothier, E Weeks and P Newton Future Requirements for Soil Management in New Zealand: Phase 1: Looking back (National Land Resource Centre, Contract Report LC2077, December 2014) <mpi.govt.nz/ dmsdocument/10400-future-requirements-for-soil-management-in-new-zealand>.
9. DH Hicks and T Anthony (eds) Soil Conservation Technical Handbook: Part A: Principles (Ministry for the Environment, Wellington, 2001) <nzarm.org. nz/vdb/document/26>; E Gasser, M Schwarz, A Simon, P Perona, C Phillips, J Hübl and L Dorren “A review of modeling the effects of vegetation on large wood recruitment processes in mountain catchments” (2019) 194 Earth Sci Rev 350 <doi.org/10.1016/j.earscirev.2019.04.013>; C Phillips, L Basher and R Spiekermann Biophysical performance of erosion and sediment control techniques in New Zealand: a review (Landcare Research, Contract Report LC3761, June 2020) <www.landcareresearch.co.nz/assets/Events/Remote-sensing/2022/RA1.2_ Review_final_2020_LC3761.pdf >.

criterion used to determine the significance of laws to soil conservation (apart from content) was to look at the number of repealed sections [Repealed], but that too was quite arbitrary because even the RMA (highly regarded for its soil protection measures) has a number of repealed sections. The content of the Acts was scan-read on the New Zealand Legislation website <www.legislation.govt. nz> for soil conservation relevance.

In this way, the resultant source references were obtained for this study.

3. RESULTS

The Soil Conservation and Rivers Control Act 1941 set up the first national system for soil and catchment management, and both informed and was accommodated by many subsequent Acts; for example, the Reserves and Domains Act 1953, the National Parks Act 1980 and the Local Government Act 2002. Catchment boards, which were of central importance in promoting soil conservation among the rural community,¹⁰ were set up under the Soil Conservation and Rivers Control Act 1941, s 126(2)(f ). This Act reflected what may be called “the first generation” of government policy and regulation to address environmental issues, focusing mainly on “preservation and conservation” (Table 1). A number of amendments followed the first enactment (eg Soil Conservation and Rivers Control Amendment Acts 1948, 1954 and 1988), until, ultimately, many of its provisions were subsumed under the resource management law reform process of the late 1980s and early 1990s, including reorganisation of local government under local government legislation, and the enactment of the RMA.

The Land Act 1948 relied heavily on the Soil Conservation and Rivers Control Act 1941 for issues affecting soils, mostly relating to Crown land for settlement.¹¹ The Land Act 1948 upholds soil conservation objectives concerning land for recreation permits,¹² underpinned by the provisions of the RMA for all compliance purposes.¹³

10. Mather, above n 4.

11 Land Act 1948, s 44(5).

12. Section 66A(3).
13. Section 66A(5).

^{Name of Act and year} Environmental issue era¹⁴

Soil Conservation and Rivers Control Act 1941 First generation: Preservation

and conservation

Land Act 1948

Forests Act 1949

Wildlife Act 1953

Reserves and Domains Act 1953 [Repealed]

Town and Country Planning Act 1953 [Repealed]

Water and Soil Conservation Act 1967 [Repealed] Second generation: Modern

environmentalism

Reserves Act 1977 Third generation: Global issues

Town and Country Planning Act 1977 [Repealed]

National Parks Act 1980 Environment Act 1986

Conservation Act 1987 Resource Management Act 1991 Local Government Act 2002

Table 1: Key New Zealand Acts (excluding Amendment Acts) relating to soil conservation policy and planning

The Forests Act 1949 contains soil erosion clauses¹⁵ and a soil protection clause¹⁶ inserted from the Forests Amendment Act 1993. Trees are important for soil conservation because planting of, eg poplars and willows, is a key soil erosion measure of land reclamation projects, as dense tree root networks provide stability to the soil substrate.¹⁷

The Water and Soil Conservation Act 1967 was mostly focused on regulating water quality, mitigating flooding and ensuring adequate drainage,

14. After Carter, above n 7.
15. Forests Act 1949, s 67O(3)(b).
16. Schedule 2 cl 8(b).
17. IH Lynn, AK Manderson, MJ Page, GR Harmsworth, GO Eyles, GB Douglas, AD Mackay and PJF Newsome Land Use Capability Survey Handbook: A New Zealand Handbook for the Classification of Land (3rd ed, AgResearch/Landcare Research/GNS Science, Hamilton/Lincoln/Lower Hutt, 2009) at 40 and 146 <doi. org/10.7931/DL1MG6>.

and reducing soil erosion.¹⁸ The Act came into being during the second generation of environmental issues, called “modern environmentalism” (Table 1). The Town and Country Planning Act 1953 had mainly to do with town planning, as the name suggests,¹⁹ and was repealed by the Town and Country Planning Act 1977 that dealt with land-use planning for the most part.²⁰ This marked the next generation of environmental laws (Table 1).

The Reserves and Domains Act 1953 was the forerunner of legislation put in place for the protection of public land. The third generation of environmental issues, ie “global issues” (Table 1), produced a series of laws that reflected international or global ideas and concerns, such as ecosystem approaches and sustainability. In the Reserves Act 1977, eleven sections make mention of soil as one of the important ecosystem components for conservation areas. Reserves or public reserves, excluding regional parks (governed by the Local Government Act 2002) and national parks (governed by the National Parks Act 1980), are often denuded pieces of land in or close to urban areas,²¹ in which the Reserves Act 1977 plays a vital role for soil preservation. The National Parks Act 1980 surprisingly refers very little to soil as a conservation entity (appears in three sections only), when taking into account the vast surface area covered by national parks.²² However, in principle, soil protection features very significantly in s 4 of the Act.

The main legislation that has been developed in the environmental manage- ment space is contained in the Environment Act 1986 and the RMA (both administered by the Ministry for the Environment or MfE), the Conservation Act 1987 (administered by the Department of Conservation or DOC), and the Local Government Act 2002 (administered by the Department of Internal Affairs).

4. RECENT DEVELOPMENTS

As a result of key administrative governance reforms of the late 1980s,²³ MfE and the independent office of the Parliamentary Commissioner for the Environment were formed under the Environment Act 1986. There is very little in this Act about soil conservation, except two references to the Soil

18. NJ Ericksen, PR Berke, JL Crawford and JE Dixon Plan-making for Sustainability: The New Zealand Experience (Routledge, London, 2017) <doi. org/10.4324/9781315246741>.
19. Grinlinton and Palmer, above n 8. 20 Ericksen and others, above n 18. 21 Reserves Act 1977, s 2(1)(h).

22 Grinlinton and Palmer, above n 8. 23 Grinlinton and Palmer, above n 8.

Conservation and Rivers Control Act 1941 and the Water and Soil Conservation Act 1967. MfE is very active on the coalface of national policy statements and planning standards, and it administers the RMA and Resource Management Amendment Act 2020.²⁴

The establishment of Acts such as the Wildlife Act 1953 and Conservation Act 1987 can be seen as legislative steps in the right direction, ie to take an integrated approach to environmental management, by recognising land as habitat for native flora and fauna and the preservation of biodiversity.²⁵ It was under the Conservation Act 1987 that DOC was formed.²⁶ Similar to reserves and other public lands, the RMA has limited powers over the conservation estate, as DOC land is governed by the Conservation Act 1987. However, the Act allows for similar policy and planning processes to take place as does the RMA in other areas not under DOC jurisdiction.²⁷

Numerous Acts, including the Water and Soil Conservation Act 1967 and Town and Country Planning Act 1977, were incorporated into the RMA.²⁸ It was the enactment of the RMA in 1991 which has been a watershed moment in biodiversity protection and sustainability, holistically protecting the environment against adverse effects regardless of the activity or type of development proposed.²⁹

The advent of a “new environmental ethos” of neoliberal persuasions in the 1980s meant that environmental protection decision-making was to some extent devolved from central government to local government and the market forces of the private sector.³⁰ The traditional land-use capability (LUC) planning approach of rigid zones,³¹ unlike McHarg’s³² ecocentric designing-with- nature approach, was transformed by the RMA.³³ The vertically and laterally integrated approach of the RMA is advantageous for soil protection, as it links the abiotic components, crucial for microbial life and vegetation, to other

24. Ministry for the Environment “Acts and Bills” (1, 4 April 2021) <environment. govt.nz/acts-and-regulations/acts>.
25. K Bosselmann and P Taylor “The New Zealand law and conservation” (1995) 2(1) Pac Conserv Biol 113 <doi.org/10.1071/PC950113>.
26. Grinlinton and Palmer, above n 8. 27 Grinlinton and Palmer, above n 8.
28. Grinlinton and Palmer, above n 8; Anderson Lloyd “25 years of the RMA and CMA” (29 September 2016) <www.al.nz/25-years-of-the-rma-and-cma>; Ericksen and others, above n 18.
29. Bosselmann and Taylor, above n 25; Ericksen and others, above n 18.
30. Lilburne and others, above n 1; Grinlinton and Palmer, above n 8; Ericksen and others, above n 18.
31. Ministry of Works Land Use Capability Survey Handbook: A New Zealand Handbook for the Classification of Land (New Zealand Government, Wellington, 1971).
32. I McHarg Design with Nature (Natural History Press, New York, 1969). 33 Ericksen and others, above n 18.

parts of the biosphere.³⁴ Lower-level policies and plans give effect to higher- level ones (district-regional-national), and laterally in terms of cooperation between stakeholders.³⁵ The National Policy Statement for Highly Productive Land (NPS-HPL)³⁶ under the RMA is a necessary step towards protecting New Zealand’s most productive (fertile and versatile) land — comprising 15 per cent of the country’s land surface — from urban development, ensuring such land can be used for growing crops. Expansion of urban areas results in the loss of productive land, which the NPS-HPL earmarks for primary production purposes to protect it from inappropriate subdivision, use and development.

The new mapping of thresholds for environmental concern takes into account natural hazards, ground water protection, outstanding natural land- scapes and versatile soils.³⁷ These are different zones with little overlap between each layer that could complicate risk assessment, but also provide more specified risk parameters for authorities and developers to consider in different areas for different activities.

Greater Wellington (GW) values catchment boards, establishable under the Soil Conservation and Rivers Control Act 1941, and regular soil monitoring³⁸ under the MfE national monitoring programme directives.³⁹ There is not a soil- specific national policy statement the GW plans need to give effect to, although the National Policy Statement for Freshwater Management and New Zealand Coastal Policy Statement require effects on water bodies to be managed. As for national environmental standards specific to soil conservation, there are none. A balance between risks of acting and risks of not acting needs to be considered, and how risk can be reduced through public participation.

Even though central government’s national goals and legislation reforms⁴⁰ have been environmentally robust in terms of soil conservation, it comes down to the local government’s planning effectiveness and capability to put into practice the necessary means lent to regional and district councils to protect

34 Lilburne and others, above n 1; Grinlinton and Palmer, above n 8. 35 Resource Management Act 1991, ss 67(2), (3) and 75(3).

36. Ministry for the Environment “National Policy Statement for Highly Productive Land” (20 September 2022) <environment.govt.nz/publications/national-policy- statement-for-highly-productive-land>.
37. Greater Christchurch Partnership Our Space 2018–2048: Greater Christchurch Settlement Pattern Update Whakahāngai O Te Hōrapa Nohoanga (July 2019) at 21 <www.greaterchristchurch.org.nz/our-work/background/our-space>.
38. Landcare Research “SINDI soil quality indicators: About SINDI” (24 October 2012) <sindi.landcareresearch.co.nz/Home/About>.
39. Greater Wellington Regional Council Section 32 report: Soil conservation for the Proposed Natural Resources Plan for the Wellington Region (July 2015) <archive. gw.govt.nz/assets/Plans--Publications/Regional-Plan-Review/Proposed-Plan/ Section-32-report-Soil-conservation.PDF>.
40. Environment Act 1986; Conservation Act 1987.

soils sustainably.⁴¹ In other words, councils should not allow development on fertile soils by writing protective measures into their unitary or regional and district plans, with the backing of resource management legislation, ie the RMA or its primary successor, the proposed NBA (Natural and Built Environment Act).⁴² Meanwhile, the Resource Management Amendment Act 2020 has greatly reduced the complexity of the RMA.⁴³

Plans are not static and the Hurunui District Plan is no different. Tree planting to prevent soil erosion is encouraged in North Canterbury.⁴⁴ Policy

3.2 states that highly productive soils should be protected by “discouraging activities that will have adverse effects on their continued productive use and life-supporting characteristics that are difficult to reverse”.⁴⁵

Legislation alone is insufficient to prevent soil damage, and there is no universal model to protect soils despite international policy agreements.⁴⁶ Unless a paradigm shift in land use happens whereby vulnerable soils are converted from farming to forestry, soils remain under threat.⁴⁷ National policy and regional regulations should be intended to benefit farmers with a smaller footprint on the environment, while holding back relief aid and subsidies from or penalising those with unsustainable stocking regimes.⁴⁸

5. CONCLUSION

Soil conservation legislation, involving several Acts over the last 80 years, has been partially successful in leading to desirable planning outcomes. I recommend the reinstatement of expert catchment boards (and that they

41. Ericksen and others, above n 18.
42. Ministry for the Environment “Resource management reform: The Natural and Built Environment Act” (15 November 2022) <environment.govt.nz/publications/ resource-management-reform-the-natural-and-built-environment-act>.
43. Ministry for the Environment, above n 24.
44. Hurunui District Council Hurunui Operative District Plan (25 March 2022), issue

3.2.7 <dp.hurunui.govt.nz/eplan/#>. 45 Policy 3.2.

46. Grinlinton and Palmer, above n 8; Fromherz, above n 2.
47. J Braden Policies for soil conservation in New Zealand: options for government (Lincoln University Centre for Resource Management, Information Paper No 31, August 1991) <researcharchive.lincoln.ac.nz/bitstream/handle/10182/1207/ crm_ip_31.pdf >; Ministry for the Environment and Stats NZ New Zealand’s Environmental Reporting Series: Our land 2021 (April 2021) <environment.govt. nz/assets/Publications/our-land-2021.pdf >; Hurunui District Council, above n 44.
48. Braden, above n 47; E Gómez-Baggethun and JM Naredo “In search of lost time: the rise and fall of limits to growth in international sustainability policy” (2015) 10(3) Sustainability Sci 385 <doi.org/10.1007/s11625-015-0308-6>.

be made more ecocentric), as the relevant sections of the Soil Conservation and Rivers Control Act 1941 are still current. This is also alluded to in materials produced by GW.⁴⁹ Although soil erosion has been a focus of past soil conservation efforts, other aspects of soil quality should be brought more fully into policy and planning. Soil monitoring should be undertaken regularly and plans adjusted according to the results. It is uncertain how effectively the soil indicator (SINDI) assessment tool⁵⁰ has been used by non-expert council staff. I disagree with Lilburne and others⁵¹ that science results should be “tailormade” to suit future policies, as policy should follow the science, laws enacted or amended, and plans drafted and implemented accordingly. As New Zealand is at the environmental crossroads, it would appear that the RMA, having both anthropocentric and ecocentric features, has failed in protecting soils adequately. The RMA’s effects-based planning (as opposed to activities- based planning) is pragmatic for integrated environmental management, which will become more evident with the new NBA under way. However, I would recommend that nature be made front and centre in the principles of the Act, and not contain anthropocentric elements.

49. Greater Wellington Regional Council, above n 39.
50. Landcare Research “SINDI soil quality indicators: About SINDI” (24 October 2012) <sindi.landcareresearch.co.nz/Home/About>.
51. Lilburne and others, above n 1.