Submission of Denis Tegg on the Thames-Coromandel District Council and Hauraki District Council Mangrove Management Billto the; Governance and Administration Committee

This submission is in the name of Denis Tegg BA LLB - Thames

I wish to appear before the Committee to speak to my submission

1. Introduction

I oppose this Bill in its entirety and submit that the Bill should not be given a Second Reading.

This Bill is entirely lacking in merit and is a waste of Parliament's time and taxpayer money. At its heart, this Bill seeks to sweep away all existing laws ever enacted which already deal with mangroves, including decades of legal precedent and the legal protections built into those existing laws. All of this to protect the narrow, vested interests of a small number of landowners in one or two communities who are disenchanted with the existing RMA process - a process which applies to every other person in New Zealand. The Mayors, and Council members promoting this Bill are engaging in political grandstanding.

2. Section 7 (2) – Council is not required to comply with any other enactment

Section 7 (2) states the Council is "not required to comply with any other enactment that would otherwise regulate or apply to mangrove management activities".

This provision is simply unworkable nonsense, as it would allow the Council to ignore and/or ride roughshod over –.

the Ramsar multilateral Treaty signed by the New Zealand Government, as it applies to the lower Firth of Thames wetland. It is nonsensical that a local authority could be empowered by a Local Bill to make decisions that affect a Ramsar wetland which might conflict with international law, and with the executive powers reserved to the Prime Minister and Cabinet.

The New Zealand Coastal Policy Statement (NZCPS) and the Supreme Court decision in the King Salmon case as to the primacy of the NZCPS in all coastal resource management matters. For example Policy 11(b)(iii) in the New Zealand Coastal Policy Statement clarifies that to protect indigenous biological diversity of the coastal environment we must “avoid significant adverse effects and avoid, remedy or mitigate other adverse effects of activities on indigenous ecosystems and habitats that are only found in the coastal environment and are particularly vulnerable to modification, including estuaries, lagoons, coastal wetlands, dunelands, intertidal zones, rocky reef systems, eelgrass and saltmarsh.”

decades of practice and precedent under the Resource Management Act, (RMA) the Conservation Act, and the myriad of other laws which apply to the management of

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ecosystems generally, and mangroves in the coastal environment. For example sections 12(1)(c) and (e) of the Resource Management Act (RMA) state that “no person may, in the coastal marine area, destroy, damage or disturb the foreshore or seabed in a manner that has, or is likely to have, an adverse effect on the foreshore or seabed, or on plants or animals or their habitat, unless expressly allowed by a rule in a regional coastal plan or a resource consent.”

the Waikato Regional Council Regional Policy Statement the Council's own District Plans

3. Sets unworkable precedent

If this Bill were to be passed, it would set a very harmful precedent. A flood of local Bills from other regional and territorial authorities would likely be drafted - each seeking to promote and ease the way for their own pet projects. One of the reasons advanced by the Thames-Coromandel District Council (TCDC) in support of this Bill are that the existing process is "time-consuming, costly, and divisive". That description could be applied to almost any contentious Resource Management Act resource consent application. For example, it could easily apply to the wish of some communities on the West Coast to facilitate mining. If this Bill were to be passed what would stand in the way of the Buller District Council promoting a similar local Bill with the purpose of facilitating mining, and which would purport to ignore Schedule 4 of the Crown Minerals Act and the host of other laws which currently apply? The result nationwide would be chaotic.

4. The existing laws are working

Resource consents for large-scale mangrove removal have already been granted in the Whangamata harbour (and elsewhere in the country). Work in the Whangamata harbour was halted by the Regional Council because the conditions of consent were not being complied with. The current legal regime is working, but the proponents of this Bill want to have their own special legislation merely because they are disenchanted with the existing process.

The Council say that one of the motivations for the Bill is to improve relationships with the Regional Council. What is not stated is that there is already a formal co-operative Statement of Intent between the TCDC and the Waikato Regional Council relating to the management of mangroves.

5. Community Concern is Over-Stated

TCDC has submitted that "coastal communities have become increasingly concerned at the spread of mangroves". This overstates the level of concern. To the contrary, the increasing concern I hear in the community is of the need to retain and enhance the buffer which mangroves provide against rising sea levels, storm surges and coastal flooding and erosion.

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This concern about coastal inundation has increased markedly since the January 5 2018 storm surge which caused significant damage in Thames and on the Thames Coast. The community has awoken to the fact that the mangrove fringe provides a very effective buffer against coastal inundation and erosion. The fact that most of the worst damage occurred in areas without a mangrove fringe was not a coincidence. The protective value of the mangroves can be seen from this short video taken during the January 5 storm beside the entrance to the Richmond Villas retirement home on the Thames foreshore. It is evident that the storm surge, wave height and wave run-up was markedly higher through the channel where mangroves had been removed.

6. Removes existing legal protections -

BiasThe Bill proposes a lax informal consultative process under the Local Government Act. The councils would appoint the members of its own committee(s) as a quasi-judicial body to decide on mangrove management. Given the Bills stated purpose in section 4 is “to facilitate the removal of mangrove vegetation” the stain of bias and pre-determination against any such committee would be unavoidable. This practice of appointing in-house Council members has been largely abandoned under the Resource Management Act, with independent Commissioners being appointed, and expert evidence being produced, now routine practice. In 2005 TCDC’s current Mayor Sandra Goudie (then a newly elected Member of Parliament) assisted a group in Whangamata who engaged in the illegal cutting down of mangroves with chainsaws and slashers. TCDC appears to have actively obstructed the efforts of Forest and Bird Society under the Official Information Act to obtain details of the councils’s legal advice relating to the Bill.The assessment of mangrove management proposals should never be given to a Council-appointed committee when the TCDC has such a history of predetermination and bias. Mangrove Planting Ruled OutIt is now common practice overseas for mangroves to be planted in harbours and estuaries as a highly effective coastal hazard protection mechanism. The Bills stated purpose of facilitating only mangrove removal would mean that any proponent of mangrove planting and expansion would not be heard, as this falls outside of the purposes of the Bill. After the storm surge events in Thames on January 5 and on the West Coast in early February, and the projected far greater frequency of these extreme storm surges with rising sea levels, it would be a colossal mistake to consider a Bill which would entirely rule out the planting of mangroves as a coastal hazard buffer. (refer University of Cambridge Guidance document on P.8)No Appeal RightsThere would be no right of appeal to the Environment Court or to the High Court and beyond. The existing long-established procedures and practices relating to hearings expert evidence, cross-examination under the RMA and other legislation, and decades of legal precedent would be abandoned. The only remedy available would be an administrative law review such as a judicial review. There is no justification for mangrove removal being placed on this special legal pedestal and for this issue alone being afforded this extraordinary special ill-controlled treatment.3

7. The Bill Would Circumvent Established Legal Precedent

A recent Environment Court decision ( 2013] NZEnvC 173 Graeme v Bay of Plenty Regional Council has considered the issue of mangrove removal in great depth. Many of the conclusions from the judgement completely undermine the justifications advanced in support of the Bill. The following extracts from the judgement illustrate with why the Councils have sought to evade existing law and precedent by proposing a special Local Bill.

No amenity recreational or access basis for removal

44 “We undertook site visits, and in several places it was most difficult for us to understand any amenity, recreational or access basis for the removal of large tracts of mangroves. In some cases, this had released sediments which, in our view, would simply join those within the harbour until they settled out in another position. In many cases it had made no difference to the sediments which had simply remained in place without the mangroves.”

Decisions driven by populist support

47 “Overall, we cannot see these previous consents as examples of the correct application of the Policy before the Court. We suspect that these decisions have been driven by the lack of opposition and desire to support estuary care groups. We do not think any assumption can be made that consent will continue to be granted in the same way in the future”

Mangroves are part of the natural character of the coast

48 “It appears to us that the basis of the management of mangroves must recognise that they are indigenous vegetation and part of the natural character of the coast. There is nothing that we can see in the wording of the Policy which fails to recognise and provide for them in this way”.

Removal is a breach of the preservation requirement of section 6 (a) of the RMA – justification for removal must be more than “a mere public dislike”

49 “We conclude that the removal of mangroves as prima facie a breach of the preservation requirement of section 6 (a) of the Act. Accordingly, there must be some justification to remove mangroves beyond a mere public dislike”

Removal has no ecological benefit

50 “the ecological evidence before us was clear. Mangroves have ecological value and the removal has no ecological benefit. Although it may lead to change to another habitat, it is not possible to say whether the new habitat is better or worse than the old – they are simply different habitats.”

Removal of little benefit for wading birds

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52 “Thus, we agree with Dr De Luca that the removal of mangrove habitat and a replacement with a sandy habitat, even if achieved, would serve little benefit for the number of wading birds already present in Tauranga.”

There is a myriad of matters to be considered under Part 2 and the NZCPS

62 “When we look at this group of changes it appears to us to recognise the necessary balance between the various matters under Part 2 of the Act and the Coastal Policy Statement. In particular;

The natural character values of the mangrove in any species that inhabits

values of other ecologically significant habitats that may be affected

the role of mangroves in avoiding or minimising coastal erosion

the established role of mangroves in the ecosystem

effects on recreational and walking access, including navigational

other effects on amenity, both of the mangroves or their removal

sediment re-mobilisation

allowing specific provisions for seedling removal in cleared areas or where the mangroves have not yet expanded”

A whole of catchment basis is required

69 “We agree entirely with the Regional Council that the matter should be approached on a catchment basis, and we are pleased to hear that they have subdivided the harbour into catchments, and are working with various interested parties, including estuary care groups, to formulate and initiate catchment plans”

Mangrove management cannot be addressed as an isolated issue

70 “Accordingly the reference within the Policy to a Catchment Management Plan gives us a great deal of faith that the question of mangrove management will not be addressed as an isolated issue. It is simply part of a much larger and complicated jigsaw. When the matter is approached on this basis, it can be seen that a catchment approach will ensure that the outcome of any changes are monitored and ongoing improvements to riparian management, land-based sedimentation and avoidance of erosion are all carefully considered as part of the integrated approach.”

8. Risk assessment of Ramsar Wetland- Mangrove Expansion a Lower Order Risk

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in 2007 the Waikato Regional Council commissioned a technical report 2007/22 entitled “Application of the Relative Risk Model to Investigate Multiple Risks to the Miranda Ramsar Site. The relative risks in the Lower Firth of Thames are summarised in the following graphic from the report -

The report concluded that by far greatest risk was agricultural land (dairy), followed by climate change, then contaminants from urban and industrial land use, and “Firth sediment”. Mangrove expansion was assessed as one of the lesser risks.

Therefore, if one of the purported reasons for the Bill is to recognise “all-important ecological values” and to obtain “balanced outcomes “for “precious harbour environments”, (TCDC submission) why is there no Local Bill been promoted to control the identified topmost threats namely – “agricultural land use (dairy)” and climate change? It is hard to avoid the conclusion that concern for ecological values and “loss of shorebird feeding habitat” is being used as a cloak of respectability, when the overriding concern is for private property “rights” to open up views of open water adjacent to harbour properties by removing mangroves.

9. The Issues are Complex and Require Multi-Disciplinary Expert Assessment

The issues regarding the removal of mangroves are complex and require assessment from suitably qualified experts. This is the experience from past resource consent hearings under the RMA. In fact, there is concern that even the RMA processes have not in some cases been sufficiently robust. This experience suggests that it would be a massive mistake to weaken and water down the existing process as proposed under this Bill. A self-appointed committee of TCDC or HDC do not have the resources, expertise or required technical expertise needed

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to identify environmental values and protect mangroves where necessary. Nor will the “once over lightly” “on the cheap” process proposed by the Bill stand any chance of properly assessing these complex issues.

These concerns are set out very coherently in a report –

Mangroves in New Zealand – Misunderstandings and Management – Dr Sharon Deluca – Boffa Miskell Ltd Tauranga

I wish to quote several passages from Dr De Lucas’s Paper, as they summarise these issues very well. (My emphasis)

“Mangrove removal proponents often state that the ecological benefits from mangrove removal are the maintenance of benthic habitat diversity and ensuring that there is sufficient open mudflat/sandflat habitat for wading and coastal bird foraging. In my experience, neither of these proposed ecological justifications have scientific rigor. There is no published literature that clearly links ecological enhancement with mangrove removal in New Zealand. There is, however, evidence that identifies significant adverse ecological effects associated with mangrove removal [9]. Whilst there may be non-ecological reasons for the removal of mangroves, the ecological benefits often put forward in support of mangrove removal are not supported by robust data or published scientific literature. “

“Removal (consented and illegal) of mangroves has occurred in the Northland, Auckland, Bay of Plenty and Waikato Regions. In most cases, large scale removals have not achieved the desired outcome. Councils themselves are often the resource consent applicant on behalf of community and estuary care groups. Those applications in particular need to be carefully and robustly assessed by independent experts (not only independent hearings commissioners) in order to remove the suggestion of conflicts of interest. “

“To date, the ecological science supporting large scale mangrove removal applications has, in some situations, been insufficiently weak and not adequately independently reviewed. Consented mangrove removal has been occurring in the Bay of Plenty for nearly ten years. Consent for mechanical removal of mangroves over 92ha was approved in 2009. This approach caused significant adverse ecological effects to estuaries, primarily due to physical disturbance from heavy machinery and to anoxic conditions arising from mangrove mulch smothering the benthos [9]”.

“Removals arising from many previously approved applications have caused significant acute and chronic adverse ecological effects including mass mortality of benthic invertebrates, anoxic sediment, declines in water

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quality, and loss of foraging habitat [9]. These adverse effects were not identified in the original resource consent applications. “

Resource consent should be sought for any proposed mangrove removal and a site-specific, robust ecological assessment should be provided as part of any such application. This approach is supported by Morrisey et al. (2007) who concluded that evaluation of mangroves should be undertaken on a site-by-site basis in order to understand the processes and effects occurring, whether mangrove populations are stable or dynamic, site specific physical and ecological characteristics, geomorphology, climate, sediment input, nutrient st not come on and go down you can atus and hydrodynamics.”

References 9. Lundquist, C., Hailes, S., Cartner, K., Carter, K., Gibbs, M., 2012. Physical and biological impacts associated with mangrove removals using in situ mechanical mulching in Tauranga Harbour. NIWA Technical Report 137, NIWA, Wellington 10. Morrisey et al., 2007. The New Zealand mangrove: review of the current state of knowledge. Auckland Council Technical Publication ARCTP325, Auckland Council.

Another excellent, highly graphical and easy to read publication which I commend to members of the Committee is entitled “Mangroves for coastal defence - Guidelines for coastal managers & policy makers”, published by Cambridge University in the UK, The Nature Conservancy and Wetlands International .

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This document highlights the host of highly complex interrelated issues relating to mangrove management which need to be considered by coastal managers, particularly in the context of coastal defence. Issues covered include: -

“The role of mangroves in coastal risk reduction Mangroves reduce wave damage Mangroves reduce damage from large storms Mangroves can help to reduce tsunami damage Mangroves reduce erosion and bind soils together Mangroves may keep up with sea level rise Managing mangroves for coastal defence Integrating mangroves into coastal defence strategies Mangroves as part of coastal zone management Bringing the mangroves back Recognising the multiple values of mangroves “

A NIWA publication “Guidelines for Managing Mangrove Expansion in New Zealand” highlights how the simplistic “ambulance at the bottom of the cliff” approach proposed in the Bill is a recipe for failure and adverse and unintended consequences The section headed “Managing expectations and realistic time-frames” states-

“Many mangrove removal areas have shown both immediate and long-term adverse impacts, which include anoxic (lacking oxygen, often black in colour and smelling of sulphur) sediments, minimal dispersal or decomposition of mangrove debris, high levels of hydrogen sulfide associated with rotting plant material, bacterial mats, large and prolonged algal blooms, and vehicle track marks persistent for many years after removal.

A change to sandy sediments is not guaranteed with mangrove removal, though resource consent applicants often assume this will occur. Rather, the return to sandier sediment after mangrove removal is site specific and depends on choosing the right method for the area. Transition to sand flats is unlikely after mangrove removal in areas that have insufficient hydrodynamic flow. Methods of removal are not always successful. Effective long-term management of mangrove colonisation requires a reduction in sediment and nutrient loads from the catchment.”

Conclusion

This Bill which concentrates exclusively on mangrove removal, merely barely scratches the surface of the complex issues at stake with mangrove management. These multifaceted issues cannot be decided under a less robust process than the current law provides, by Councils which has already predetermined the outcomes. If this Bill were to become law, it would undermine the integrity of the RMA, and create a dangerous and unworkable precedent.

I therefore call on the Committee to recommend to Parliament that this Bill not be given a Second Reading

I also respectfully request that the Committee hold some of its hearings in the Thames Coromandel District.

Denis Tegg

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