This paper examines the development of adaptive management in New Zealand’s resource management case law. In particular, this paper investigates a Supreme Court decision (Sustain Our Sounds Inc v King Salmon New Zealand Co Ltd), which established a set of criteria for implementing adaptive management through New Zealand’s Resource Management Act. This paper describes King Salmon’s initial request for aquaculture permits, the Supreme Court appeal, and the Supreme Court’s justification for an adaptive management approach. Analyzing this justification, this paper explores the remaining constraints using an adaptive management approach to enable a more agile and flexible resource management system in New Zealand.
Students will gain an understanding of what adaptive management is, as well as the practical constraints to its application, through investigation of a New Zealand-based case study.
Adaptive management is a system-based resource management technique which accepts that actions must be taken despite uncertainties, and that learning from experimentation is the best way to decide what actions to be taken . Adaptive management was first conceptualized 40 years ago and remains a persistent concept in both practice and research [2, 3]. This case study examines the development of adaptive management through case law in New Zealand and describes the institutional constraints to using adaptive management to create a more agile and flexible resource management system.
New Zealand’s institutional framework for resource management has been praised for its flexibility , but others reject this claim. For some, New Zealand’s resource management legislation is too restrictive on new developments ; for others, it is too permissive and results in “suboptimal outcomes for the environment” . One possible solution to this dilemma is to create an adaptive resource management system that enables development while protecting the environment in the face of ecological or technological uncertainties.
In this paper, adaptive management is defined as “an approach to natural resource management that emphasizes learning through management based on the philosophy that knowledge is incomplete and much of what we think we know is actually wrong, but despite uncertainty managers and policy makers must act” . Learning in adaptive management is achieved through experimenting and prototyping different management interventions, and learning is further enhanced by monitoring and reviewing the interventions to see if they were successful. It is hoped that this iterative process of planning, prototyping, monitoring, and learning will help to manage, if not reduce, uncertainty when making future decisions.
Uncertainty is present because humans lack understanding of complex ecological systems, as well as the interaction between these systems and different policy interventions . Proponents argue that adaptive management reduces uncertainty by prototyping different policies and monitoring their effects on ecological systems [7, 9, 10]. But some argue that adaptive management can be co-opted by pro-development or pro-conservation interests . Pro-development interests can co-opt adaptive management by emphasizing the need to use resources despite uncertainty about the effects of resource use, offering adaptive management experiments as a type of environmental insurance. This criticism is why some refer to adaptive management as a “suck it and see” approach . Pro-conservation interests can also co-opt adaptive management by insisting on more complex and expensive policy experiments, which become a barrier to the practical use of adaptive management.
Given this, it is perhaps not surprising that adaptive management has proven difficult to apply in practice [13, 14]. There are various reasons for this. Some argue that assessing the effect of an activity on the environment is very difficult if you do not have baseline data about the receiving environment . Frequently, insufficient time and resources are devoted to collecting quantitative baseline data, which means that predictions of effects are often based on qualitative assessments and anecdotal data . Another reason adaptive management has struggled in practice is the high costs involved in the collection of quantitative baseline data, as well as in monitoring the effects of activities . Also, adaptive management experiments often fail to consider how they fit with existing decision-making processes, resulting in poor cohesion with these processes leading to implementation difficulties . Despite these practical constraints, adaptive management remains a popular concept in theory and in practice [10, 18] because it addresses the seemingly incompatible wishes of developers and conservationists simultaneously.
This paper examines the development of adaptive management in case law interpreting New Zealand’s Resource Management Act 1991 (RMA). The RMA regulates natural and physical resources in New Zealand, such as land, air, and water. The purpose of the RMA is to “promote the sustainable management of natural and physical resources” by safeguarding the life-supporting capacity of resources while avoiding, remedying, or mitigating any adverse effects of activities on the environment . The RMA requires New Zealand’s central government to establish national priorities through policy statements and national environmental standards, and local governments have to implement the RMA in accordance with these policy statements and environmental standards. Although adaptive management is not specifically mentioned in the RMA itself, it has developed as a concept in RMA case law.
The case examined in this paper began when the aquaculture company New Zealand King Salmon applied to change the Marlborough Sounds Resource Management Plan. The plan change would reclassify salmon farming from a prohibited activity to a discretionary activity in eight sites identified by King Salmon. If successful in changing the plan, King Salmon would simultaneously seek consent to farm salmon at those new sites. King Salmon also applied for one extra consent in a site where aquaculture was already considered as a discretionary activity, thus not requiring a plan change. Initially, New Zealand’s Minister of Conservation referred the decision to a Board of Inquiry (New Zealand King Salmon Requests for Plan Changes and Applications for Resource Consents).
The Board of Inquiry approved the plan changes, but resource consents were only approved in four sites and in the remaining sites they were declined. The Board referenced the New Zealand Coastal Policy Statement when making its decision. It was argued that King Salmon’s proposal would affect areas the Coastal Policy Statement identified as having outstanding natural character, and so the Board declined consents in those sites. The four remaining consents were granted due to the compelling benefits of aquaculture in the local area, with the Board of Inquiry arguing that this decision was a balanced interpretation of the RMA’s goal of sustainable management.
To further protect the environment, the Board of Inquiry suggested that the four approved consents should be monitored through an adaptive management approach. The Board described adaptive management as “a precautionary technique that provides a pragmatic way forward, enabling development while securing the ongoing protection of the environment, in complex cases where there are ecological or technological uncertainties as to the effects of the proposal” . Then, they outlined four different requirements that must be met before an adaptive management approach could be used. These requirements were as follows:
a good baseline of information about the receiving environment,
monitoring of adverse effects using appropriate indicators,
the establishment of thresholds which trigger remedial action before effects become damaging, and
that any effects that might arise can be remedied before they become completely irreversible .
This decision was subsequently appealed at the Supreme Court. There were two distinct appeals: one in which the appellant was the Environmental Defence Society (Environmental Defence Society Inc v The New Zealand King Salmon Co Ltd) and another in which the appellant was the group Sustain Our Sounds (Sustain our Sounds Inc v The New Zealand King Salmon Co Ltd). In this paper, I will refer exclusively to the Sustain Our Sounds decision because this clarified what criteria must be met before an adaptive management approach could be used in the RMA.
Sustain Our Sounds v The New Zealand King Salmon Co Ltd
The Sustain Our Sounds appeal required the Supreme Court to assess whether an adaptive management approach was suitable. Sustain Our Sounds argued that salmon farming presented a serious threat to water quality in the local marine environment, and that due to scientific uncertainty the initial Board of Inquiry was unable to assess the effects of the proposal on water quality . Given this uncertainty, the appellant argued that the proposed plan changes could not be justified.
King Salmon responded by arguing that the proposed plan change — by simply changing a prohibited activity to a discretionary activity in a certain location — would not itself result in any environmental degradation . King Salmon noted that some consents were rejected by the Board of Inquiry due to concerns over the effects salmon farming could have on sites identified by the Coastal Policy Statement as having outstanding natural character. The Coastal Policy Statement also required a “precautionary approach” to be taken. In King Salmon’s view, the initial rejection of some consents combined with a robust adaptive management approach for the remaining consents was properly precautionary. If, under these circumstances, the Supreme Court rejected these consents, King Salmon argued it would set a precedent that only activities with near perfect scientific knowledge of their effects could be classified as anything but prohibited in the RMA .
Given the need for a precautionary approach, the Supreme Court had to decide whether adaptive management was sufficiently precautionary in this context. The Court considered a guidance note from the Department of Conservation on how to apply the Coastal Policy Statement, which argued that it was a matter for local governments to decide if there was enough certainty about the likely effects of an activity . Given this, the guidance note argued that detailed monitoring of effects would be required for an adaptive management approach to be considered adequately precautionary.
The Court then considered other examples of adaptive management established in RMA case law to see if they were adequately precautionary. In Clifford Bay Marine Farms Ltd v Marlborough District Council, the Environment Court approved a resource consent for a marine farm after an extensive survey of endangered Hector’s dolphins that lived in the area . In this case, the Environment Court argued that the probability of unintended adverse effects was low, and subsequently this should not result in the application being declined. In another case, Crest Energy Kaipara Ltd v Northland Regional Council, the Environment Court concluded that a credible baseline of knowledge from which new initiatives can be measured is required for an adaptive management approach to be adopted . This baseline data ensured that adaptive management does not become a “suck it and see” approach.
Given consideration of these examples of case law and others, the Supreme Court concluded that for an adaptive management approach to fit within a precautionary approach, the following four criteria need to be confirmed:
the extent of environmental risk,
the importance of an activity,
the degree of uncertainty, and
the extent to which an adaptive management approach will sufficiently diminish risk and uncertainty.
The Supreme Court then assessed King Salmon’s proposal against these criteria. The Court noted that uncertainty was still high, but the modeling provided by King Salmon had reduced uncertainty to some degree . In concluding they stated:
The Board [of Inquiry] was thus entitled to consider that the four factors it had identified were met. In this case, given the uncertainty will largely be eliminated and the risk managed to the Board’s satisfaction by the conditions imposed, it was open to the Board to consider that the adaptive management regime it had approved, in the plan and the consent conditions, was consistent with a proper precautionary approach .
In conclusion, the Sustain Our Sounds appeal was unsuccessful, and King Salmon was permitted to farm in the four originally consented sites utilizing an adaptive management approach.
This paper examined case law precedent in New Zealand’s RMA which outlined criteria for applying adaptive management. This case study illustrated that both the original Board of Inquiry and the Supreme Court considered adaptive management suitably conservative. In doing this, the Courts established criteria that must be met if adaptive management is to be applied through the RMA, such as analyzing the environmental risk and importance of an activity, understanding potential uncertainty over an activity’s effect, and calculating the extent to which an adaptive management approach will diminish risk and uncertainty. To conclude this paper, I argue that these criteria are a constraint on the application of adaptive management. The first constraint is the baseline data. Baseline data are required to know what the state of the environment is before a management intervention is experimented with. For many resource management decisions, these baseline data will not be available because monitoring is expensive and it is unrealistic to expect ongoing monitoring of all resource systems. Alternatives to baseline data, such as modeling of effects, can reduce uncertainty to a level where adaptive management is applicable, but this modeling will also be costly, and it often fails to provide the clarity desired by decision-makers .
A second constraint is overlapping policy directions. This case study highlighted how the Coastal Policy Statement affected the ability of King Salmon to gain consent for aquaculture in all the locations it desired. However, it also illustrated how adaptive management can be used to supersede the Coastal Policy Statement. The institutional framework for resource management might not support an adaptive management process, and failure to align and integrate adaptive management experiments with the existing institutional framework is a constraint on its implementation .
A third constraint is cost. As already argued, obtaining baseline data or modeling effects in the absence of these data are expensive. Prototyping different policy interventions to see what works best is also expensive. However, companies with access to ample financial resources can still reap enormous benefits if they can justify resource use through an adaptive management approach. This motivates pro-development interests to pursue adaptive management experiments. Thus, although high costs are a constraint on the use of adaptive management, well-resourced companies or industries might see adaptive management as a necessary investment to gain access to resources.
Despite numerous practical constraints to its use, adaptive management has remained a persistent concept in theory and in practice for 40 years. The elegance and persuasiveness of adaptive management as a concept perhaps explain this persistence. On paper, it resembles a simple concept that would enable more agile and flexible resource management, easing tensions between those who view current resource management practices as too permissive or too restrictive. In practice, adaptive management requires significant investment in baseline data collection and prototyping management interventions to reduce uncertainty, while ensuring adaptive management fits within the broader legislative context.
CASE STUDY QUESTIONS
Can you briefly describe what adaptive management means?
What are the different phases of the adaptive management cycle, and what are they intended to achieve?
In your opinion, what makes adaptive management different from typical resource management techniques?
In your local area, how important are the Courts in interpreting environmental legislation? Are there key cases that have shaped environmental management in your local area?
The case study illustrates that modeling can sometimes be used to replace baseline data in adaptive management experiments. What are the implications for assessments of risk and uncertainty when you are using a model rather than baseline data?
The lead author researched and wrote this paper without assistance from co-authors.
The author would like to thank Dr. Ronlyn Duncan for reading and commenting on an early version of this paper.
This research was funded by Manaaki Whenua–Landcare Research’s Strategic Science Investment Fund.
The author has declared that no competing interests exist.