Section 6 - Matters of National Importance

All persons exercising functions and powers under the Act are required to recognise and provide for seven matters of national importance set out in section 6.

In achieving the purpose of this Act, all persons exercising functions and powers under it, in relation to managing the use, development, and protection of natural and physical resources, shall recognise and provide for the following matters of national importance:

(a) The preservation of the natural character of the coastal environment (including the coastal marine area), wetlands, and lakes and rivers and their margins, and the protection of them from inappropriate subdivision, use, and development:
(b) The protection of outstanding natural features and landscapes from inappropriate subdivision, use, and development:
(c) The protection of areas of significant indigenous vegetation and significant habitats of indigenous fauna:
(d) The maintenance and enhancement of public access to and along the coastal marine area, lakes, and rivers:
(e) The relationship of Maori and their culture and traditions with their ancestral lands, water, sites, waahi tapu, and other taonga.
(f) the protection of historic heritage from inappropriate subdivision, use, and development.
(g) the protection of protected customary rights.
(h) the management of significant risks from natural hazards. 

There is no hierarchy between the principles within section 6. Therefore, where there is a conflict between matters of national importance (although this should be rare) the decision maker must weigh the significance of the competing interests in the circumstances of the particular case.

With regard to para (a), the High Court in NZ Rail stated that "the preservation of natural character is subordinate to the primary purpose of the promotion of sustainable management. It is not an end or objective on its own but is accessory to the principle purpose". ⁴⁸³

Following that decision the Environment Court noted that the requirement to “recognise and provide for” section 6 matters implies that they have a significant priority and cannot merely be an equal part of a general balancing exercise ⁴⁸⁴   and the fact that these matters are described as being of national importance indicates that they are to have relatively greater weight accorded to them than regional or district goals. ⁴⁸⁵

The Supreme Court in EDS v King Salmon agreed that section 6 does not give “primacy” to preservation or protection however “provision must be made for preservation and protection as part of the concept of sustainable management”. ⁴⁸⁶  Sections 6(a) and (b) “make it clear that those implementing the RMA must take steps to implement that protective element of sustainable management”. ⁴⁸⁷

Greater guidance is given in relation to a number of the matters of national importance by the New Zealand Coastal Policy Statement.

Section 6(a) - The preservation of the natural character of the coastal environment (including the coastal marine area), wetlands, and lakes and rivers and their margins, and the protection of them from inappropriate subdivision, use and development.

What is ‘natural character’?

The words “natural” and “natural character” do not necessarily equate with “endemic” or  “pristine” and connote a range of qualities and features created by nature, as distinct from man-made constructions. The absence of certain vegetation, landforms, or water features may simply mean that the landscape is less natural rather than non-natural. ⁴⁸⁸

Policy 13(2) of the New Zealand Coastal Policy Statement 2010 states that natural character is not the same as natural features and landscapes or amenity values and may include matters such as:

1. natural elements, processes and patterns;
2. biophysical, ecological, geological and geomorphological aspects;
3. natural landforms such as headlands, peninsulas, cliffs, dunes, wetlands, reefs, freshwater springs and surf breaks;
4. the natural movement of water and sediment;
5. the natural darkness of the night sky;
6. places or areas that are wild or scenic;
7. a range of natural character from pristine to modified; and
8. experiential attributes, including the sounds and smell of the sea; and their context or setting.

What is ‘the coastal environment’?

The seaward edge of the coastal environment is 12 nautical miles from land at the edge of the territorial sea. The landward edge of the coastal environment is not so clear. The Planning Tribunal has stated that the coastal environment is an environment in which the coast is a significant and: ⁴⁸⁹

What constitutes the coastal environment will vary from place to place and according to the position from which a place is viewed. Where there are hills behind the coast, it will generally extend up to the dominant ridge behind the coast.

Policy 1 of the New Zealand Coastal Policy Statement 2010 gives further guidance:

1. Recognise that the extent and characteristics of the coastal environment vary from region to region and locality to locality; and the issues that arise may have different effects in different localities.
2. Recognise that the coastal environment includes:
1. the coastal marine area;
2. islands within the coastal marine area;
3. areas where coastal processes, influences or qualities are significant, including coastal lakes, lagoons, tidal estuaries, saltmarshes, coastal wetlands, and the margins of these;
4. areas at risk from coastal hazards;
5. coastal vegetation and the habitat of indigenous coastal species including migratory birds;
6. elements and features that contribute to the natural character, landscape, visual qualities or amenity values;
7. items of cultural and historic heritage in the coastal marine area or on the coast;
8. inter-related coastal marine and terrestrial systems, including the intertidal zone; and
9. physical resources and built facilities, including infrastructure, that have modified the coastal environment.

What is ‘inappropriate subdivision, use and development’?

The natural character of the coastal environment, wetlands, lakes and rivers is not protected absolutely. Instead, a decision maker must assess whether an activity that may have an adverse effect on that character is “inappropriate”. 

The term “inappropriate” is “heavily affected by context and should be assessed by reference to what it is that is sought to be protected”. ⁴⁹⁰  The Supreme Court has confirmed that in the context of s 6(a), the standard of inappropriateness relates back to the natural character attributes that are to be preserved or protected rather than the activity that is proposed. It is not appropriate to take an “overall judgment” approach to interpreting the meaning of “inappropriate”. ⁴⁹¹

Whether an activity is “inappropriate” will depend upon the extent to which a location can absorb development without adverse effects on the natural qualities of the site itself and the surrounding environment. This will turn upon both the characteristics of the area and the proposed activity.

Policy 13 of the New Zealand Coastal Policy Statement 2010 provides the meaning of the term “inappropriate” in relation to natural character in the coastal environment ⁴⁹²  through its requirement for all adverse effects of activities on natural character to be avoided in areas with outstanding natural character and significant adverse effects of activities on natural character to be avoided in all other areas of the coastal environment.

Section 6(b) - The protection of outstanding natural features and landscapes from inappropriate subdivision, use and development

What is an ‘outstanding natural feature or landscape’?

A feature or landscape must be both outstanding and natural to fall within section 6(b). ⁴⁹³

To be considered ‘natural’ for the purposes of section 6(b) a feature or landscape t need not be pristine. There is a spectrum of naturalness from a pristine natural landscape to a cityscape and a cultured natural landscape may still be considered outstanding. ⁴⁹⁴  The Environment Court has stated that criteria of naturalness include relatively unmodified and legible landforms, the presence of water, the presence of (usually native) vegetation, and being uncluttered by structures and/or obvious human influence. ⁴⁹⁵

A landscape is not restricted to the purely visual, but may comprise and encompass the ways in which individuals and communities perceive the natural and physical resources, as through traditions, lore, and legends that express the significant and memorable elements of a landscape. ⁴⁹⁶

In the context of considering identification of outstanding natural landscapes in the proposed Queenstown-Lakes District Plan, the Environment Court observed that the criteria for assessing whether a landscape is outstanding include, but are not limited to: ⁴⁹⁷

• The natural science factors — geological, topographical, ecological, and dynamic components of the landscape;
• Its aesthetic values, including memorability and naturalness;
• Its expressiveness (legibility) — how obviously the landscape demonstrates the formative processes leading to it;
• Transient values — occasional presence of wildlife or its values at certain times of the day or year;
• Whether the values are shared and recognised;
• Its value to tangata whenua; and
• Its historical associations.

Section 6(b) does not apply only to ‘nationally’ outstanding features and landscapes. It is the local context that matters, so what is outstanding in terms of a district plan is to be assessed on a district-wide basis and similarly on a region-wide basis in respect of regional policy statements and plans. ⁴⁹⁸

District plans and regional policy statements or plans generally identify outstanding natural features and landscapes. However, lack of identification of an area within the relevant planning documents is not determinative of whether an area is an outstanding natural feature or landscape. ⁴⁹⁹

Policy 15 of the New Zealand Coastal Policy Statement 2010 requires outstanding natural features and landscapes in the coastal environment to be identified, having regard to:

• natural science factors, including geological, topographical, ecological and dynamic components;
• the presence of water including in seas, lakes, rivers and streams;
• legibility or expressiveness – how obviously the feature or landscape demonstrates its formative processes;
• aesthetic values including memorability and naturalness;
• vegetation (native and exotic);
• transient values, including presence of wildlife or other values at certain times of the day or year;
• whether the values are shared and recognised;
• cultural and spiritual values for tangata whenua, identified by working, as far as practicable, in accordance with tikanga Māori; including their expression as cultural landscapes and features;
• historical and heritage associations; and
• wild or scenic values.

What is ‘inappropriate subdivision, use and development’?

Outstanding natural features and landscapes are not protected absolutely. Instead, a decision maker must assess whether an activity is “inappropriate”. 

The term “inappropriate” is “heavily affected by context and “should be assessed by reference to what it is that is sought to be protected”. ⁵⁰⁰  In the context of s 6(b), the standard of inappropriateness relates back to the landscape or feature that is to be preserved or protected. It is not appropriate to take an “overall judgment” approach to interpreting the meaning of “inappropriate”. ⁵⁰¹

Whether an activity is “inappropriate” will depend upon the extent to which a location can absorb development without adverse effects on the natural qualities of the site itself and the surrounding environment. This will turn upon the characteristics of the area and the proposed activity. Activities outside an outstanding natural feature or landscape may have inappropriate effects on an outstanding natural feature or landscape. For example, a wind farm adjacent to an outstanding natural feature or landscape may have an adverse effect on the feature or landscape. ⁵⁰²

Policy 15 of the New Zealand Coastal Policy Statement 2010 provides the meaning of the “inappropriate” in relation to natural landscapes in the coastal environment ⁵⁰³  through its requirement that all adverse effects of activities on outstanding natural features and landscapes be avoided and significant adverse effects of activities on natural features and landscapes to be avoided in all other areas of the coastal environment.

Section 6(c) - The protection of areas of significant indigenous vegetation and significant habitats of indigenous fauna

“Protection” is the imperative in section 6(c) and it is not limited by reference to “inappropriate subdivision, use and development” (compare with section 6(a) and (b)). Non-regulatory mechanisms (on their own) are unlikely to provide adequate assurance of protection.

What is ‘significant indigenous vegetation and significant habitats of indigenous fauna’?

Section 6(c) is not limited to nationally significantindigenous vegetation or habitats of indigenous fauna. It is the local context that matters, so what is significant in terms of a district plan is to be assessed on a district-wide basis and similarly on a region-wide basis in respect of regional policy

statements and plans. Assessing significance includes consideration of the extent to which biodiversity has already been diminished in the district, region or nationally. ⁵⁰⁴

Criteria which have been used by the Environment Court to evaluate significance include: ⁵⁰⁵

• Representativeness (extent of range of genetic and ecological diversity);
• Diversity and pattern (in relation to ecosystems, species, and land forms);
• Rarity factors and/or special features;
• Naturalness/intactness; size and shape (affecting the long-term viability of species, communities and ecosystems, and amount of diversity);
• Inherent ecological viability/long-term sustainability;
• Relationship between natural areas and other areas of mere modified character; and
• Vulnerability of site; management input required to maintain or enhance an area’s significance.

Many councils map significant areas and include a schedule of them in their planning documents.

Section 6(d) - The maintenance and enhancement of public access to and along the coastal marine area, lakes and rivers

Public access can be provided in a variety of ways, including through creating esplanade reserves and strips along the edge of the sea, lakes and rivers, through creating public reserves adjoining these areas, or through providing public facilities such as boat ramps and walkways.

 The Marine and Coastal Area (Takutai Moana) Act 2011 establishes that every person has the right to enter the common marine and coastal area and to engage in recreational activities in the common marine and coastal area subject only to restrictions set out in statute. ⁵⁰⁶

Policy 19 of the New Zealand Coastal Policy Statement 2010 provides further direction in relation to public access to and along the coastal marine area.

Section 6(e) - The relationship of Maori and their culture and traditions with their ancestral land, water, sites, wahi tapu, and other taonga 

Sections 6(e), 7(a) and 8 of the Resource Management Act provide the basis for the protection of Māori interests in resource management. Lord Cooke of Thorndon considered the effect of section 6(e) and observed that: ⁵⁰⁷

These are strong directions, to be borne in mind at every stage of the planning process. The Treaty of Waitangi guaranteed Maori the full, exclusive and undisturbed possession of their lands and estates, forests, fisheries and other properties which they desired to retain. While, as already mentioned, this cannot exclude compulsory acquisition (with proper compensation) for necessary public purposes, it and the other statutory provisions quoted do mean that special regard to Maori interests and values is required in such policy decisions as determining the routes of roads.

What is ‘ancestral land, water, sites’?

The High Court has accepted that ”ancestral land” is land that has been “owned” by ancestors (i.e. it need not remain in Māori ownership today). ⁵⁰⁸  However, it is important to note that the traditional Māori relationship with land is different to “ownership” in the western sense. It encompasses a connection between the culture and traditions of the people and the land in question. ⁵⁰⁹

What is wāhi tapu?

The expression ‘wāhi tapu’ is defined in the Heritage New Zealand Pouhere Taonga Act 2014 as meaning a place sacred to Māori in the traditional, spiritual, religious, ritual or mythological sense. The Environment Court has observed that wāhi tapu areas are generally small areas as to accord large areas of land waahi tapu status would have been too restrictive in daily life, given the very severe cultural restrictions that applied to such places. ⁵¹⁰

In the resource management context the question of whether or not a site is wāhi tapu is a question of fact to be made on an objective consideration of evidence.

How can the relationship of Māori and their ancestral land, water, sites, wahi tapu, and other taonga be provided for?

In each case, it is necessary to identify whether there is a relationship between Māori and the affected lands, water, sites, wahi tapu and other taonga. There must be a nexus between the two. In that regard, the Environment Court has observed that the traditional Māori holistic view of the environment does not warrant treating section 6(e) as if it extended to diffuse relationships with whole districts. ⁵¹¹

Once a relationship of Māori with one of the listed matters is recognised, the decision maker must consider how to provide for that relationship. Generally, consultation with tangata whenua will be imperative. ⁵¹²  Where an activity may have an adverse effect on an identified relationship with one of the listed matters, alternatives sites or methods will often be preferred, even though such alternatives may not be optimal. ⁵¹³  

Where a development will meet the purpose of sustainable management, the fact that it may adversely impact on the relationship between Māori and the affected lands, water, sites, wahi tapu and other taonga is not necessarily fatal. As with other section 6 matters, section 6(e) does not establish a power of veto. ⁵¹⁴

Section 6(f) - The protection of historic heritage from inappropriate subdivision, use, and development.

In the context of considering a proposal to demolish an earthquake-prone heritage building the High Court held that section 6(f) does not require alternatives to be “exhaustively and convincingly excluded” and rather the consent authority must ensure its consideration is founded upon an assessment of whether or not destruction of historic heritage is a balanced response, and a fair, appropriate and reasonable outcome. ⁵¹⁵ Note - it is questionable whether this assessment is correct in light of EDS v King Salmon.

The primary means by which protection of historic heritage is provided for is by scheduling items or areas in the district plan. However, even if a item or area is not scheduled, section 6(f) may still apply in favour of protection. ⁵¹⁶

Section 6(g) - The protection of protected customary rights

The Marine and Coastal Area (Takutai Moana) Act 2011 defines 'protected customary right' as an activity, use or practice established under the Act and recognised by a protected customary rights order or an agreement. ⁵¹⁷ Protected customary rights orders can be granted over a specified part of the common marine and coastal area. Such orders recognise a particular activity, use or practice which has been exercised since 1840.

The recognition of a protected customary right has a number of implications for RMA processes. For example, a plan or proposed plan must not include a rule that permits and activity if that activity is likely to have a more than minor adverse effect on a protected customary right ⁵¹⁸  and a protected customary rights group will be considered an affected party in relation to a resource consent application if the activity may have an adverse effect on the protect customary right and the group has not given written approval for the activity. ⁵¹⁹

Section 6(h) - The management of significant risks from natural hazards

This principle was added to the Resource Management Act in 2017. It responds to issues identified following the Canterbury Earthquakes and should result in a greater focus on natural hazards risks during planning and consenting processes. 

Last updated at 2:16PM on January 4, 2018