The use of biodiversity offsets in mining and energy development

Abstract

This article first reviews the nature of biodiversity offsets and their use in selected jurisdictions, including the UK, US, Canada and Australia. The unique approach to biodiversity offsets in New Zealand under the Resource Management Act 1991 (RMA) is then examined in detail, including judicial consideration and analysis of the concept in several recent decisions. The RMA is the primary legislation governing the protection of the environment and the use of land, air and water resources in New Zealand, guided by the principle of 'sustainable management'. The Crown Minerals Act 1991 (CMA) governs the allocation of mining rights and access to minerals over private and Crown land. Opportunities for offsets through the mineral permitting and resource consenting regime is discussed, and mining and energy development case studies are used to illustrate the use of biodiversity offsets in practice. The article also examines the value of national policy guidance in the design of biodiversity offsets, the use of conservation covenants to ensure durability of offset arrangements, and the idea of 'conservation banking' to facilitate and encourage industry 'buy-in'. Conclusions and recommendations are made, which hopefully may inform and advance the debate on the use of biodiversity offsets in other jurisdictions.