Associate Environment Minister Andrew Hoggard backtracks on Significant Natural Areas announcement

By Kate Green for RNZ

An associate government minister has walked back advice to councils that they can ignore a set of rules protecting the environment.

Legal experts have said the government is breaking legal precedent, and asking councils to break the law too, by suspending the requirements.

Associate Environment Minister Andrew Hoggard announced on Thursday the government was suspending rules around Significant Natural Areas, known as SNAs, for three years while it replaces the Resource Management Act.

The statement said: "For now, the government has agreed to suspend the obligation for councils to impose SNAs under the NPS Indigenous Biodiversity, and we're sending a clear message that it would be unwise to bother".

On Friday, he released a statement saying his comment had been misunderstood:

"To be clear, there has been no change to statutory and regulatory obligations on councils at this point. These obligations continue to apply until and unless amended.

"If my statement has been read in a way that suggested that the change had already come into effect, this was not the intention. The next phase is to give effect to Cabinet's decision."

Legal scholars are comparing the directive to the infamous case of Fitzgerald vs Muldoon, when the then-Prime Minister directed government departments to stop paying into a soon-to-be-axed superannuation fund.

SNAs were first introduced in 1991, but only with last year's National Policy Statement on Indigenous Biodiversity did councils have to identify land for protection by 2028, including on private property.

The statement is being compared to Fitzgerald vs Muldoon by experts.
The statement is being compared to Fitzgerald vs Muldoon by experts. Photo credit: Alexander Turnbull Library.

The suspension only applies to the creation of new SNAs, with Hoggard's statement saying: "We're sending a clear message that it would be unwise to bother".

The Environmental Defence Society claimed asking councils to ignore the rules was unlawful, as no laws had yet been changed, and legal experts agree.

Associate Professor Marcelo Rodriguez Ferrere, from Otago University's Faculty of Law, said it was deeply concerning.

Laws were made by parliament, he said, not the ruling government, and so for a government to direct anyone to ignore a law was stepping into the shoes of parliament but bypassing all the normal processes for scrutiny and debate laws went through to be created or repealed.

"It is essentially saying to councils, 'Stop doing this work, we'll change the law so you don't have to do it, but we haven't done that yet'."

This left councils in a bind. If they do not follow the law they could face legal action from whoever had the resource to take them to court - and the precedent for this was set nearly 50 years ago.

In 1976, Robert Muldoon issued a press release telling government agencies to stop paying into a superannuation scheme which would soon be repealed.

Muldoon was taken to court, and the move was found to be illegal, setting the precedent for years to come.

"The huge irony is that it wouldn't have taken them much, given all of the reforms that they've made and the wholesale repeal of the RMA ... they had the opportunity and the capacity to amend this through the proper channels," Rodriguez Ferrere said.

He said he couldn't think of a good reason why they would have done it this way.

His colleague, Associate Professor Edward Willis, said it would be "more accurate to say the government may be asking and expecting councils to ignore the law, rather than break the law".

"But it is tricky because the press release seems to imply that this is an expectation without directly stating it. This could be deliberate, which is why it might be problematic, or it could simply be unfortunate drafting."

Professor Andrew Geddis said it was "misleading at best, and borderline unlawful at worst".

"No minister can by mere announcement remove an existing legal obligation imposed by a parliamentary enactment," he said.

"If the minister intends his advice to cause local authorities to stop following what is, for now, the law of the land... [then] that is unlawful under the Bill of Rights 1688."

Act Party leader David Seymour has declined to comment.