IN THE MATTER


of the Resource Management Act 1991


AND


IN THE MATTER


of the hearing of applications by Timberlands West Coast Limited
to Buller and Tasman District Councils
for land use consents for sustainable beech forest management
(including harvesting and associated activities)




LEGAL SUBMISSIONS ON BEHALF OF


TIMBERLANDS WEST COAST LIMITED



Philip Milne
(Simpson Grierson)



Contents

(GO) SCOPE OF THE APPLICATIONS

          (GO)What the proposal does not involve
          (GO)Background and context
          (GO)Relevant considerations
          (GO) Irrelevant considerations

(GO)PART II ISSUES

          (GO) Is the proposal sustainable in Resource Management terms?
          (GO)While safeguarding the life supporting capacity of air, water, soil, and ecosystems
          (GO)Avoiding, remedying, or mitigating any adverse effects of activities on the environment
          (GO)Protection of outstanding natural features and landscapes from inappropriate subdivision, use and development
          (GO)The protection of areas of significant indigenous vegetation and significant habitats of indigenous fauna

(GO)SECTION 7 MATTERS

          (GO)The efficient use and development of natural and physical resources
          (GO)Maintenance and enhancement of amenity values
          (GO)Effects on the intrinsic value of ecosystems
          (GO)Maintenance and enhancement of the quality of the environment
          (GO)Any finite characteristics of natural and physical resources
          (GO)The protection of the habitat of trout and salmon

(GO)THE PRECAUTIONARY APPROACH

(GO)ADEQUACY OF THE ASSESSMENT OF ENVIRONMENTAL EFFECTS

(GO)EVIDENTIAL ISSUES

(GO)ADEQUACY OF EVIDENCE

(GO)RESOURCE CONSENT CONDITIONS

(GO)CONCLUSION


SCOPE OF THE APPLICATIONS

As you are aware, there are three separate applications one to the Buller District Council and two to Tasman District Council follows:

Application to Buller District Council for a land use consent for a term of 35 years for "sustainable beech forest management including the selective felling of trees" and other activities in the Grey working circle within Buller District and the Ingangahua Valley working circle and in part of the Station Creek forest within the Maruia working circle.
Applications to Tasman District Council in relation to the same activities within the Ingangahua working circle.
Application to Tasman District Council for land use consent under section 13 relating to works within river beds, and in particular vehicle crossings.

The Buller application does not include access to the State Highways other than in compliance with rule 7.4 of the Buller District plan. If necessary, separate consents will be sought for such access points within Buller District.

The resource consent applications include a full description of the activities to which they relate. Clearly, the key component of the proposal is the sustainable selective felling of trees and associated aerial extraction of logs by helicopter. All other activities are in effect ancillary to this principal activity.

Full details of the proposal are set out in the assessment of environmental effects (AEE). There is a comprehensive executive summary of the proposal and its effects at the beginning of volume one. The key points of the proposal are as follows:

"The extraction will be undertaken at a rate and in such a manner so as to ensure that extraction does not exceed the natural rate of replenishment of the forest, so that the forest ecosystem, and associated resources, are maintained in perpetuity and so that the activities are sustainable in the sense used in the Resource Management Act 1991.

"Extraction of beech, and rimu trees, will be selective and will almost exclusively use aerial extraction by helicopter, and will not involve clear felling or unsustainable partial felling. Between one and ten mature trees will be felled at each location and the canopy gap size will not exceed 0.05 ha. On average, in the "old growth" unmodified forest approximately 15 trees per hectare will be extracted (cleared) from any given hectare once every 10 to 15 years. There are a number of other significant mitigation measures detailed in section 8 of the report to ensure sustainability."

The sustainable beech management proposal has been designed to allow very low intensity harvesting of beech trees within the limits of natural variation of forest. There will be only minor effects on the environment from the activity. The objective is to ensure that status quo is maintained in terms of natural processes and overall bio-diversity within the forest ecosystem.

The clearance rate (which includes trees felled but not harvested by helicopter) is approximately one tree per hectare per year on average over 35 years in the "old growth" forests. (Contrary to Forest and Bird's submission the old growth forests comprise the vast majority of the total area of production forest in the proposal). Mr Richards will outline the area of recovery forest involved and the proposed intensity of operations there.

The potential environment effects of the proposal are summarised in the AEE and in short form in the executive summary. The proposed mitigation measures summarised in the executive summary are included in full in section 8 of the report. Many of those measures are capable, if necessary, of being incorporated into consent conditions. If required, the Councils can also impose additional or more stringent conditions.

It is important to note that the consents sought are for a term of 35 years, and that Timberlands has sought a 10 yearly review of conditions. (Accepting of course, that the Councils are entitled if necessary to provide for more frequent reviews).

The proposal also involves extensive monitoring programmes and audit processes in conjunction with the opportunity for formal review of consent conditions, in the unlikely event that such review is required.

(INDEX) What the proposal does not involve

Contrary to some statements which have been made over recent months (including by politicians) the proposal does not involve "improvement felling". Nor does it involve more felling than as stated in the applications (which has also been suggested). It does not involve any clear felling or traditional land-based harvesting methods.

(INDEX) Background and context

The proposal arises as a direct result of the West Coast Accord. The Accord dealt with indigenous forests that were not already protected. They were either put into the conservation (stewardship) estate or were set aside for "production" purposes. Clause 4 of the accord provides as follows:

"That all state forest production areas to be offered for sale to the Forestry Corporation for management on a commercial basis subject to normal statutory requirements and the following additional constraints which would all apply to any public or private sector manager of those forests:

that the indigenous forest be managed to allow a continuing supply of indigenous timber in perpetuity;"

In addition, clause 9 provides "that a sustained yield beech scheme may proceed on the basis of the designated production areas identified on the appended maps from the final report of the working party and outlined in detail on maps held by the New Zealand Forest Service and that the Crown will invite tenders as soon as possible."

The Courts have held that the accord is a contractual commitment and the Crown intended to bind themselves as to the disposal of timber, both indigenous and exotic in terms of the agreement.

Clause 4(i) appears to impose a binding obligation on the Crown to "commercially manage" indigenous production areas on a "sustainable" basis. (The High Court has held that as at 1996, clause 9 was not enforceable, because at that stage the Crown was still investigating the scheme). However, these legal niceties are for a different forum.

What is important is that these commitments are now in effect incorporated into Timberlands' Deed of Appointment and Statement of Corporate Intent. Leaving aside the overcut, its prime objective is now to manage these production forests on a commercial and sustainable basis. It is the Accord and these management objectives which have driven the current process. Timberlands also believes that the proposal is economically viable. However, that is not an issue which is your concern under the RMA.

All of this is largely irrelevant to the current applications, as is the surrounding political debate on whether the Government should resile from the Accord. What is important, is that the Accord requires that the production forests be managed on a commercial basis to allow a continuing supply of indigenous timber in perpetuity, and that the beech scheme must be carried out on a "sustained yield" basis.

Similarly, under the Forest Amendment Act which may soon apply to the Timberlands estate, any indigenous harvesting must be sustainable.

The Accord states that the management is subject to "normal statutory requirements" which obviously includes the Resource Management Act. The RMA also requires the scheme to be sustainable. However, under the Act the concept of "sustainability" is far wider and potentially more restrictive that under either the Accord or the Forest Act. It is not just concerned with sustained yield.

The critical point, is that the beech scheme may only proceed if it is both sustainable in terms of the continuous supply of indigenous timber and also sustainable as that term is used in the Resource Management Act.

It is for you and perhaps ultimately the Environment Court to determine whether the proposal is sustainable in RMA terms. The outcome of this hearing may perhaps assist the Government in forming a final view on the proposal. However, if it wishes to stop the scheme for other reasons that is its prerogative subject of course to the sanction of the Court in terms of the Accord.. It is accepted of course that if the Government wishes to prevent the scheme for other reasons it can do that.

(INDEX) Relevant considerations

Section 104 of the Act sets out the matters to be considered when considering an application for a resource consent and any submissions received on those applications.

The whole of the consideration is subject to Part II of the Act (purpose and principles) and in addition the consent authority must       "have regard to:

               any actual and potential effects on the environment of allowing the activity; and

               any relevant objectives, policies, rules or other provisions of a plan or proposed plan; and

               any other matters the Consent Authority considers relevant and reasonably
               necessary to determine the application."

There are other matters listed but they don't appear to have any great relevance to the present case.

In the case of the applications to Buller District Council, the activity in issue is a restricted discretionary activity in accordance with rule 5.3.2.4.2of the plan. Section 105 provides that "where the Consent Authority has restricted the exercise of its discretion, consent may only be refused or conditions may only be imposed in respect of those matters specified in the plan or proposed plan to which the Consent Authority has restricted the exercise of its discretion."

Accordingly, in the case of the applications to Buller District Council, the matters in the plan are the only matters the Council may legitimately consider. It is accepted, that the overall consideration is still subject to Part II of the Act. However, Part II only applies to the extent that it is relevant to the matters to which the Council has restricted is discretion. Other matters derived from Part II or elsewhere are irrelevant: (Auckland City Council v the Auckland Regional Council a 28/99).

In the case of the application to Tasman, the Council has not restricted its discretion. Nevertheless in practice there are few if any additional matters which will be relevant.

(INDEX) Irrelevant considerations

This hearing is obviously surrounded by political controversy. Those considerations are entirely irrelevant to your task of deciding the sustainability of the proposal and imposing appropriate conditions to ensure that sustainability. It is a matter for the government as to how it allows its estate to be managed and whether or not it departs from the West Coast Accord. In the interim, the fact that the proposal may ultimately be prevented by legislation or otherwise has absolutely no bearing on the present proceedings.

Crown Counsel has written to the Councils asking that the hearing be deferred until after the Government's position is known. There is no reason or basis for you to do that. At this stage the scheme has been approved and is consistent with Timberlands' Statement of Corporate Intent. It is up to the Government to direct whether those objectives and the Accord should be abandoned. Unless or until that occurs, Timberlands has obligations to proceed diligently with these applications. Furthermore, if (which is not clear) the Government's concern is with the sustainability of the proposal, that is best and most appropriately addressed through the current process and if necessary the Environment Court.

Crown Counsel has also expressed a concern that this hearing may become a platform to debate wider philosophical and political issues concerning indigenous forest management. Certainly, Timberlands has no intention to do so. Its sole concern throughout this process has been to develop a proposal which is sustainable and to demonstrate this through the current process. I have every confidence that the Chair will keep control of the process so as to ensure that submitters similarly confine themselves to relevant matters.

Nor should you concern yourself with the emotional or philosophical debate regarding whether or not any indigenous forests should be subject to harvesting. Although those views are deserving of respect, they have no relevance to the concept of sustainability under the Resource Management Act nor are they consistent with the Accord. The Crown has already decided through the Accord process that these forests should be the subject of sustained yield commercial management. The Act is concerned with sustainability and in some cases protection. It is not concerned with conservation or preservation. Again, if the production forests are to become conservation forests that is an issue for the Crown and perhaps the Courts under the Accord.

You must not consider the effect of activities for which consent is not sought. The term of the consent is of critical importance. The effects which are in issue, are the effects of the activity during the 35 year consent period and any resulting effects which might occur or endure beyond that period. It is certainly accepted, that any long term or cumulative effects of the proposal are relevant. However, it is only the effects of the operations for which consent is sought which are of concern.

Importantly, Landcares' predictions of what it says might occur if the activity continued for hundreds of years, is of no relevance to this hearing. You should not concern yourself with the theoretical effects of what might occur if the scheme was to continue beyond 35 years at the same intensity. While Timberlands' view is this would still be sustainable, that is not its current proposal.

You must not concern yourselves with matters for which separate consent may be sought in the future, or for which no consent is required at all. In particular, aspects of the Transit New Zealand's submission relate to the effects of future access arrangements which (if necessary) will be the subject of a separate resource consent application. These issues are not for this hearing.

Nor should the Consent Authority consider effects which do not directly relate to the activity concerned. For example, Transit raises issues concerning the effect of logging trucks on State Highways. In my submission this is a matter which is beyond the scope of this hearing. Although, arguably territorial authorities can control the use of roads under the Resource Management Act, these Councils have done so. The use of roads by logging trucks is an activity which does not require resource consent. Accordingly, apart from the access on to State Highways, (which has been excluded from this application) the effects of increased trucking on State Highways or other roads is irrelevant to the hearing.

I also submit that it is irrelevant to consider the speculative suggestions as to the increased tourism which might result if the proposal did not go ahead. There is no evidence whatsoever, that the proposal would have any adverse effect on tourism. Nor is there any evidence, that protecting these forests as conservation forests instead of production forests will result in any increase in tourism or recreational use. The reality, is that most members of the general public and tourists will notice no difference whatsoever in terms of the recreational amenity provided by the forests. The intensity of use of indigenous forests has more to do with the physical facilities provided by the Department of Conservation. Those assets are already being run down within the conservation estate on the West Coast because of lack of resources. Accordingly, it cannot be assumed that if the forests became part of the conservation estate that they would benefit significantly from increased tracks and huts. In the event, they are not currently part of the conservation estate and have been specifically set aside for production purposes under the West Coast Accord. This hearing should not speculate, on whether the Government will overturn the Accord.

(INDEX) PART II       ISSUES

There is considerable overlap between the issues that must be considered under Part II and those matters which the Buller District Council has restricted its discretion to.

(INDEX) Is the proposal sustainable in Resource Management terms?

The Resource Management Act has now been in force for more than 9 years. During that time, there has been no clear guidance to what sustainability means in terms of natural ecosystems. In my submission, the proposal which is the subject of these applications embodies and illustrates the concept of sustainability as used in the Act. Indeed, if this matter is allowed to proceed its course it would provide a working example for the rest of the world of sustainable indigenous forest management.

Generally, section 5 has been held to involve an overall broad judgment of whether a proposal would promote the sustainable management of natural and physical resources. The approach allows for the comparison of conflicting considerations and requires consideration of the scale or degree of those effects, and their relative significance or proportion in respect of the final outcome. See for example Aqua Marine Ltd v Southland RC C126/97.

Sustainability is concerned with " ensuring that resources are not used up at a rate greater than their recuperative properties allow". See for example Royal Forest & Bird Protection Society v Manawatu Wanganui Regional Council A86/95 (which was also concerned with indigenous forestry). In that case, the Court indicated that some level of helicopter harvesting of podocarp forests was appropriate, but that it needed more information on how many trees per hectare could be harvested for a particular species (no modelling had been done).

As outlined above, applying section 5 requires a "broad judgment" (see NZ Rail v Marlborough DC [1994] NZRMA 70, 86).

      "Where on some issues a proposal is found to promote one or more of the aspects of sustainable management, and on others is found not to attain, or to attain fully, one or more of the aspects described in paragraphs (a), (b) and (c). To conclude that the latter necessarily overrides the former, with no judgment of scale or proportion, would be to subject section 5(2) to the strict rules of statutory construction which are not applicable to the broad description of the statutory purpose" (North Shore CC v Auckland RC A86/96).

What is required, is a weighing of the various factors involved in section 5. This may involve achieving a balance between the need to provide for social, economic and cultural wellbeing, whilst also affording due regard to paragraphs (a), (b) and (c) and the other matters arising under section 104(1) (see Mataka Station Ltd v Far North DC A69/95).

None of the matters in paragraphs (a), (b) an (c) have priority. They are safeguards and qualifications which must all be met before the purpose of the Act is fulfilled.

"Managing the use development, and protection of natural and physical resources in a way, or at a rate, which enables people and communities to provide for their economic, and cultural well being and for their health and safety".

This proposal is about allowing very low intensity development of the natural forest resources within the two districts whilst also protecting those resources from harm. The whole basis of the proposal, is to manage indigenous forestry resource "at a rate, which enables people and communities to provide for their well being."

So far as "economic wellbeing" is concerned it is the broad aspects of economics which are of relevance rather than a narrower considerations of financial viability or profitability (Morris v Christchurch CC (1993) 2 NZRMA 401 and NZ Rail Ltd v Marlborough DC [1994] NZRMA 70 (HC)). The financial viability/profitability of the proposal is of no relevance to this hearing.

The Officer's report indicates socio-economic effects are only one aspect of the proposal. Obviously that is correct. However, in my submission any socio-economic effects which do occur are likely to be beneficial. Accordingly, it is not quite correct to suggest that "challenges to the validity of the applicant's claim is [sic] not a sufficient ground to decline the application provided other adverse environmental effects can be mitigated and the proposal is consistent with the objectives and policies of the District Plans."

The applicant considers, that there will inevitably be socio-economic benefits from the proposal. The degree of those may be disputed. However, even if there were no such benefits, that would not justify declining consent. The consent authorities are concerned with the adverse effects of the proposal. The beneficial effects of the proposal are relevant and can be considered, but the absence of beneficial effects can never be the grounds for declining consent. In any event, here the only issue is the scale of the economic benefit, rather than whether or not it exists at all.

"While" (at the same time) "sustaining the potential of natural and physical resources to meet the reasonably foreseeable needs of future generations;"

This aspect of sustainability is closely related to the concept of "sustained yield" as that term is used in the West Coast Accord and the concept of sustainable management as that term is used in the Forest Act and in Timberlands' Statement of Corporate Intent. The proposal is designed to ensure the forest will continue to provide a sustained yield in perpetuity (as is required by the West Coast Accord) and is intended to ensure that the resource is not depleted. Unlike forestry in the past, this is not an exploitive proposal. The forests will be managed so that they continue to meet the reasonably foreseeable needs of future generations for indigenous timber, as well as the needs for recreation, landscape and wilderness amenity and other values.

(INDEX) "While safeguarding the life supporting capacity of air, water, soil, and ecosystems;"

This requirement does not entail the preservation of indigenous forest. It is an "environmental bottom line" which requires the life supporting capacity of these resources to be "safeguarded" (protected).

Indeed, there is little that need be said about this matter. It is quite clear, that the proposal completely safeguards the life supporting capacity of the resources which it affects.

The proposed low-intensity nature of operations, harvesting of trees over a range of diameter classes (not just the large trees), deliberate retention of a proportion of felled trees and woody material on site, and other management measures, will undoubtedly safeguard the life supporting capacity of the forest ecosystem.

Notwithstanding the claims of some of the submitters, nothing in this proposal in any way threatens the life supporting capacity of any of these resources and in particular the forest ecosystem. Whether there are adverse effects is a separate issue.

This requirement does not entail the preservation of indigenous forest. It is an "environmental bottom line" which requires the life supporting capacity of these resources to be "safeguarded" (maintained).

(INDEX) "Avoiding, remedying, or mitigating any adverse effects of activities on the environment"

This is not a requirement that there be no adverse effects on the environment whatsoever. Nor is there any priority between avoid, remedy and mitigate. Obviously, where adverse effects can be readily avoided via mitigation measures, that should occur. But, in some instances, it may be sufficient to mitigate those effects or to remedy them. This requirement is obviously closely related to the requirement to have regard to "any actual and potential effects on the environment of allowing the activity". However, considerations as to actual and potential effects do not have primacy over other section 104 matters.

When considering the actual and potential affects of an activity, it is permissible to consider any mitigation of adverse effects that might be achieved by the imposition of conditions (or otherwise) to avoid remedy or mitigate those effects (Bethwaite v Christchurch CC C85/95). It is also appropriate to take into account the beneficial effects of the proposal (in this case, the economic benefits and those of increased pest and predator control).

(INDEX) Protection of outstanding natural features and landscapes from inappropriate subdivision, use and development

Section 6 requires Councils to "recognise and provide" for this as a matter of national importance. Normally, the initial provision is made in the District Plan. However, these factors are also relevant to this hearing. This involves a number of distinct issues as follows:

If there are outstanding natural features and landscapes involved, are they adequately protected from inappropriate development?

It is accepted, that landscape is not limited to natural landscapes or visual aspects. It may be interpreted to include both physical and aesthetic properties. (See in particular Pidgeon Bay Aquaculture v CRC [1999] NZRMA 209.)

The term "outstanding" has not had much consideration under the Resource Management Act. However, it has been considered in the context of water conservation orders. In the Buller River Conservation Order decision C32/96 the Tribunal accepted that the test as to what is outstanding "should be a reasonably rigorous test" meaning the amenity "would need to be out of the ordinary on a national basis". It found that the purpose of using the word "outstanding" was to identify rivers that have amenities that "stand out in comparison with those of other rivers".

In the present context, it is not sufficient as some submitters suggest, to regard all indigenous forest landscapes as being "outstanding". Section 6 is concerned with landscapes or features that are out of the ordinary, or stand out when assessed on a district wide basis. The test is a "rigorous one". (Wakatipu Environmental Society and others v QLDC C180/99.)

Some submitters have criticised the fact, that Timberlands has not carried out a full landscape assessment of the district. There is nothing in the Act or in the Plans which requires such an approach. It is for the Councils to do that when preparing their plans if they think it necessary.

If submitters believe that particular parts of the landscape are outstanding, it is up to them to convince the Council of that. Timberlands has excluded those areas it regards as most significant from its proposal. Furthermore, even if particular parts of the forest were found to contain outstanding landscapes or natural features, that does not preclude development. It just requires the protection of those landscapes or features from inappropriate development.

The word "protection" has been found not to be as strong a word as "prevention" or prohibition. It means keeping safe from injury or harm. It does not require absolute protection (EDS v Maungonui CC [1989] 3 NZLR 257). A reasonable rather than a strict assessment is called for. In the water conservation order context, the Planning Tribunal has drawn a distinction between preservation orders and protection orders. Preservation requires a largely "hands off" approach. Protection on the other hand requires that the particular characteristics which are outstanding (or in the case of vegetation significant) be kept safe from injury or harm.

In the case of outstanding landscapes, what is required is protection from inappropriate development. A development will be inappropriate where it causes harm to an outstanding feature. A development will not usually be inappropriate where it has some minor impact on that feature.

In my submission, there is nothing "inappropriate" about what is proposed. The proposal is to be carried out in an extremely sensitive manner which minimises if not entirely avoids any adverse landscape effects (one tree per hectare per year by helicopter within widely spaced gaps of no more than 0.05 ha). The Commissioners have taken a view of the trial areas and have no doubt formed their own view as to the significance or otherwise of the visual impact. You will have seen that even by helicopter at close proximity, one has difficulty detecting where the trees have been removed from. Furthermore, such effects are short lived.

Timberland's position in relation to outstanding landscapes and natural features is quite simple. It believes, that all of the outstanding natural features and landscapes have already been excluded from the proposal either because they are contained within the conservation estate rather than a production estate, or because Timberlands' more recent assessment of areas of particular importance excluded those additional areas from the proposal. (You will hear evidence as to the process by which outstanding areas were excluded from the production estate during the 1980s).

It is accepted, that TWCL has not carried out a full landscape assessment of all areas involved in the proposal. Nor is there anything in the Act or the plans which required it to do so. What it has endeavoured to do is to identify those areas which are most significant and exclude those from the proposal.

More importantly however, the nature of the proposal is such that the visual and landscape impact of the activity will be minor (see Mr Rackham's evidence). Accordingly, even if there were found to be outstanding landscapes involved, they are protected from inappropriate development.

(INDEX) "The protection of areas of significant indigenous vegetation and significant habitats of indigenous fauna"

The issues here are similar to those above.

Again, the Courts have provided little guidance on what the word "significant" means in this context. Clearly however, the suggestion by some submitters (including Forest and Bird) that in effect all West Coast indigenous forests are significant is not what was intended by the legislation. Certainly, significance is not such a high test as outstanding. However, in my submission, in order to be significant a resource still needs to stand out as being in some way unique or different from other similar resources within the districts concerned. That requires a value judgment by the Commissioners based on the evidence before you.

This approach has been accepted by Buller District Council in its Plan. Although the Plan does not identify any areas as being significant, it does indicate that a process will be initiated to identify such areas. The Plan outlines a set of criteria which the Council will apply in deciding which areas to identify as being potentially significant in a Change to its Plan. Inevitably, there will be considerable consultation and debate in coming to that draft list. The draft (or rather map) will then be the subject of submissions, and potentially appeals.

The point I am making, is that currently there are no areas within the Buller District which are "identified" as significant. Although the criteria for significance contained in the Plan are of some guidance, they are certainly not determinative nor necessarily correct. Furthermore, there is little guidance in the Plan as to how the list is to be applied.

It has always been Timberlands' view, that it will seldom be sufficient that an area exhibits one of the characteristics on the list. It has always envisaged, that the process will involve a weighing of all of the factors. In some particular cases one of those factors may be so important that that alone demonstrates significance. In other cases, the area may exhibit only a slight aspect of a number of matters but the combination will make the area significant.

In the present process, the Plan reserves to the Council a "discretion" in relation to "protection of areas of significant indigenous vegetation or significant habitats of indigenous fauna identified using the criteria in policy 4.8.7.4 as a guideline."

It is important to note, that the Council has a discretion. This is simply one of a number of matters which the Council must consider. It is not a standard.

The words "identified using the criteria" clearly mean identified by the Council through the resource consent process. They do not require Timberlands or indeed submitters to carry out some form of assessment. If there are areas which are claimed to be significant that will need to be demonstrated to you based on evidence rather than emotion. It is not for Timberlands to carry out a district wide comparative(?) assessment.

Again, Timberlands' position is quite clear.

The areas of most significance were excluded from the production forests under the West Coast Accord or earlier processes.

Timberlands has however (with the assistance of information from the Department of Conservation and with the advice of its ecological consultants) excluded other areas of potential significance from the proposal.

It is of the view, that all areas of significance have now been excluded from the proposal by one or other of these processes.

No other areas of significance have been "identified" by the Council.

There is no cogent evidence before you of other areas of significance in the application areas. Nevertheless, even if there are areas of significance remaining in the proposal they are "protected" from harm by the very nature of the proposal and the low impact techniques involved.

If there are still areas which have not been excluded from the proposal, which submitters consider are significant, then it is up to them to convince the Council (and perhaps ultimately the Environment Court) why those areas are significant. In undertaking that exercise, submitters and the Council may certainly use the guidelines set out in the Plan. That is what was envisaged. Nevertheless, it must be accepted that those guidelines are untested and are not determinative. Ultimately, it will be for the Courts to determine what the appropriate criteria of significance are. (The current approach is that different Councils around the country are adopting different criteria for significance for the same resources.)

As outlined above, in my submission there is little merit in the argument that all West Coast indigenous forests are significant. If that were the case, Parliament would simply have required the protection of all indigenous forests. Furthermore, such an approach is entirely inconsistent with the set of criteria which are now contained in the Plan as a result of the insistence of the Royal Forest and Bird Protection Society amongst others.

In my submission, what was intended by the legislature, is that each district assess in its own particular circumstances which areas of indigenous vegetation or habitat stand out has being worthy of protection. In some districts, where there is little remaining indigenous vegetation, all remaining stands of mature vegetation might be considered significant. In other areas, such as the West Coast which is extremely well-endowed with indigenous forests, there will be some limited areas which stand out because of their particular values (eg the last remaining habitat of some endangered species).

To a large extent, the debate as to significance is unnecessary in the present context. That is because the nature of the proposal is such, that even if there are areas of significance involved, they will be adequately "protected" from harm. Again, the Act does not require preservation or a prohibition of all development within areas of significance.

What must be protected, is what is significant. If for example a particular area is found to be significant because it contains streams which support rare native fish, then what is important, is that those particular habitat values are protected. It is for this reason, that Timberlands' proposal contains specific protocols relating to, for example, streamside management and the protection of large old trees which provide nesting sites. There is no need for me to repeat the very comprehensive mitigation measures which are summarised at page XXV of the executive summary in the AEE.

(INDEX) SECTION 7 MATTERS

Although not matters of national importance, the consent authority is required to have regard to the matters in section 7. (Although in the case of Buller, it is only those matters over which it has retained discretion.)

(INDEX) The efficient use and development of natural and physical resources

This is not a matter which Buller District has reserved any discretion over. Nevertheless, I briefly address it insofar as it is relevant to the Tasman application.

In my submission, there is no room to question the efficiency of this proposal. The whole philosophy of this proposal is to provide sustained yield production in perpetuity from the forests. It does not involve depletion of the forest resource.

This is an activity which will provide jobs and opportunities on the West Coast and beyond. It is clearly a very efficient use of the natural resource to allow that to occur on a sustained yield basis (rather than the exploitive/extractive basis used elsewhere).

In considering this matter, the Council is not concerned with the economic viability or the profitability of the proposal. That is a matter for the market to determine and ultimately, the shareholding ministers (if the proposal turned out not to be viable or profitable). The reality, is that helicopter harvesting of the trees is an expensive business. The activity will not occur (or at least continue) unless there is a market for the wood and a profit to be derived.

(INDEX) Maintenance and enhancement of amenity values

This is another matter to which you must have regard, although it is not to be regarded as an environmental standard or bottom line.

The indigenous forests concerned provide varying amenity values. In particular:

            visual amenity;

            wilderness amenity

            recreational amenity.

All of these aspects are addressed in Timberlands' assessment of effects and in its evidence. It is quite apparent, given the very low intensity of the proposed operation, that it will have little if any adverse effect on amenity values. Indeed, in some areas, recreation amenity values will be enhanced by the introduction of very limited road access where none presently exists.

It would be nonsense to suggest that the maintenance of wilderness amenity values, requires absolute preservation of all indigenous forests. Nevertheless, that appears to be the underlying rationale for many of the submissions in opposition. If that is what the Resource Management Act were about, then there would be no development at all of natural resources.

(INDEX) Effects on the intrinsic value of ecosystems

You must have regard to the intrinsic value of the ecosystems involved. Having had that regard, it is not entirely clear what you are then required to do in terms of section 7. However, the Buller District Plan requires you to consider the effects on the intrinsic values of the ecosystems involved.

The proposal protects identified areas of special value and reserves those from production. Furthermore, the management system by its very design and low intensity will protect the intrinsic value of the ecosystems. The key issue in this whole application is, the effect of the proposal on ecosystems. The proposal is designed to ensure that the ecosystems are protected from harm.

In this context, the whole debate about the assumptions behind the growth model is of critical importance. I am not going to pre-empt that debate. You will be hearing from a number of scientists, including a world expert, on that particular issue. You will have to weigh that evidence against the assertions of Royal Forest and Bird and others.

(INDEX) Maintenance and enhancement of the quality of the environment

Again, little needs to be said about this issue. If the proposal is found to be sustainable and avoids, remedies or mitigates adverse effects, then it will, almost by definition, maintain quality of the environment. What is important however, is that to some extent it will also enhance the quality of the environment. As you will hear in evidence, currently the main threat facing New Zealand's indigenous flora and fauna, are those of pests and predators. These issues are not being adequately addressed in the adjoining conservation estate. If the production forests are used for the beech scheme, additional resources will be made available for pest and predator control within those forests. This will be a significant advance on what is currently occurring. It is also likely to be a significant advance on what would occur if the forests were converted to conservation forests.

(INDEX) Any finite characteristics of natural and physical resources

By definition, sustained yield management of the forest resource will protect its finite characteristics. However, the Timberlands proposal goes well beyond sustained yield. It will also achieve sustainability in Resource Management Act terms which is a more stringent concept. The proposal is not designed simply to obtain a commercial yield in perpetuity (as required by the West Coast Accord). If that were the only objective, the proposal would involve the removal of far more trees. Instead, as is outlined in the assessment of effects and as will be addressed in evidence, the proposal adopts a conservative and precautionary approach whereby the permissible harvest is set significantly lower than the net increment (50%) to provide a wide safety margin. The aim is to maintain not just a sustained yield, but also the natural forest structure and ecological function.

(INDEX) The protection of the habitat of trout and salmon

The helicopter harvesting methodology which is to be employed, will ensure that there is minimal impact on water bodies. Any stream crossings will be constructed in a manner which does not affect fish passage. Accordingly, there will be no adverse impact on the habitat of trout.

(INDEX) THE PRECAUTIONARY APPROACH

The Act does not require the application of a precautionary principle per se. What it does require, is a consideration of potential effects and cumulative effects, including effects which have a low probability of occurrence but which might cause significant harm.

As was outlined in Ratten v Tasman District Council W008/98

            "The precautionary principle should not be applied where the risk is insignificant or where the issues are evenly balanced. It may be applied where there is a need to prevent serious or irreversible harm to the environment in situations of scientific uncertainty "

In Bell South New Zealand v Christchurch City Council A015/96..it was held that:

            "The weight to be given to the precautionary principle depends on the circumstances, including the extent of scientific knowledge and the impact or otherwise of permitted activities, the gravity of the effects and the statutory purpose of promoting sustainable management".

In the present case, the precautionary principle only comes into play if the Commissioners accept that the gravity of effects asserted in (particularly) the Forest and Bird submission are in fact a possibility. In this context, you will need to very carefully consider the evidence brought forward by Forest and Bird and Landcare in comparison with the views of the expert witnesses called by Timberlands. In particular, the views of Professor Vanclay who is an expert in the field should clearly be accorded considerable weight.

You should decide whether the Timberlands evidence on these matters meets "a basic threshold of reliability" and compare the reliability of that evidence with that put forward by Forest and Bird and others.

In my submission, you will be able to conclude that the dire consequences predicted by Landcare are a result of at best inappropriate assumptions being applied to a model or at worst rather less than impartial approach to the whole issue.

You should also take into account the impact on the forests of existing permitted activities. (In particular, the significant adverse effects already occurring in the forests as a result of pests and predators.)

After all of this, you should then consider whether the precautionary principle has any applicability at all. If you believe that it does, you then need to decide whether the principle has already been applied by Timberlands, or whether some furthur restrictions are required.

The point which is of fundamental importance, is that Timberlands has already applied a precautionary and conservative approach in deciding the permissible harvest (and in the harvesting methods and protocols adopted.) The uncertainties in the model have already been taken into account and allowed for in setting that harvest. That is a matter which will be explained by witnesses.

The other point which is of importance, is that this is a process which to a large extent is self-regulating (as will be outlined by Professor Vanclay). The number of trees available under the permissible harvest will fall if the structure of the forest is changed significantly (which for reasons which will be outlined is unlikely). It is also an adaptive management process. There are mechanisms included in the proposal which require the harvest to be adjusted if adverse effects become apparent. In addition, there are formal audit processes and the ability of the Councils to review the conditions of the consent.

Finally, the consent being applied for is relatively short-term. Land use consents normally run with the land in perpetuity. Beech forests take many years to grow. This application only relates to 35 years of operation (a third of the life of a beech tree). Further consents will be required if the operation is to extend beyond that. No doubt, any changes to the forests will be comprehensively assessed at that point, or earlier if needs be in the context of a review of consent conditions.

(INDEX) ADEQUACY OF THE ASSESSMENT OF ENVIRONMENTAL EFFECTS

As accepted in the Officer's report, Timberlands has provided a very comprehensive assessment of environmental effects. Nevertheless, that has been criticised by some submitters as being inadequate. For example, it has been suggested that a full landscape assessment should have been carried out.

With respect, these submissions are misguided. An assessment of environmental effects, is intended to be a summary assessment of potential effects. There is no requirement for a comprehensive study of every possible effect. Nor is there a requirement for applicants to carry out full landscape assessments or assessments of significance. The identification of outstanding landscapes and the areas of significance is a matter for the Councils through their District Plan process.

What should also be remembered, is that the Council when assessing environment effects is entitled to take into account not only the assessment of effects, but also the supporting documentation, its own assessment (and in particular Professor Craig's report), the further information and all of the evidence before this consent hearing. For example, as far as the growth model is concerned you will hear an amplification of evidence which so far has only been summarised in the assessment of environmental effects (which is all that is required of an AEE).

(INDEX) EVIDENTIAL ISSUES

I have touched on many of the principal issues and they are comprehensively addressed in the statement of environmental effects, the Officer's report and Timberlands' evidence to this hearing. Accordingly, at this stage there is no need for me to outline Timberlands' position on particular issues. That will be addressed by the witnesses. They will also specifically address any issues raised in submssions that have not already been addressed in the assessment of the effects.

I seek leave to recall any of Timberlands' witnesses who are required to address specific new issues or evidence called by submitters during the hearing.

There is a range of potential environmental effects which is discussed in the AEE and in the Officer's report. In my submission however, many of these potential effects will clearly be so minor as to be of little relevance. The key issues are as follows:

Those are the key issues. They in turn depend upon weighing evidence relating to particular claimed effects. The most critical evidential issues relate to the following:

(INDEX) ADEQUACY OF EVIDENCE

In my submission, by the end of this hearing, you will have before you extensive and comprehensive evidence on all matters of relevance, sufficient to be able to determine the application. There have also been a number of further information requests of Timberlands which have been fully complied with and that information has already been incorporated and considered in the Officer's report.

There are many submissions in opposition from people who only have second hand knowledge of the proposal, and who do not appear to have read the AEE and who will probably not turn up to the hearing. There are also many submitters who have simply filled in the standard form submission with the words suggested to them by Forest and Bird. In my submission you should put little if any weight on these. That is not to belittle the main submission from Forest and Bird and from other parties who have in fact read the documents. However, you will need to weigh the quality of their evidence against that of Timberlands. Mere assertions and/or philosophical opposition are not enough.

As outlined earlier, the Act does not require that every effect and every risk be quantified and eliminated. Inevitably you have to make value judgments. That is always the case with major resource developments. There is never total certainty. There are however safeguards. Those safeguards are the methods and mitigation measures volunteered by the applicant and any further conditions imposed by the consent authorities. The effects of the proposal will be monitored, audited and if necessary subject to formal review or enforcement action. These are the mechanisms put in place by the Resource Management Act to deal with the reality that few things are certain in life or science! Having said that, you would be wrong to regard this as an experiment. It may be innovative but it has been very well reseached and modified as a result of the earlier consultation. Uncertainties remain but they are not fundamental.

(INDEX) RESOURCE CONSENT CONDITIONS

I will address the proposed consent conditions in my reply. I do however note, that Timberlands has gone to great lengths, to detail in advance the mitigation measures it proposes.

(INDEX)

CONCLUSION

The Officer's report and that of Professor Craig have already reached the conclusion that the consent should be granted.

I am confident, that once you have heard the additional evidence of Timberlands you will have no hesitation in following that recommendation and in concluding that this proposal is not only sustainable, but also innovative and perhaps visionary. It certainly has the potential to lead the way internationally in terms of sustainable harvesting of indigenous forests.

Some will still argue that our forests are so important that they should not be touched at all. However, that is a decision not for this hearing, but for the Government and has nothing to do with the issue of sustainability.

Philip Milne
Counsel for Timberlands West Coast Limited

December 1999
WG993400.164