Where high-risk forestry crosses the line

2026-03-08 - 16:07

Debate about forestry in Tairāwhiti has been polarised. On one side are industry representatives – and some politicians – who claim that plantation forestry is a cornerstone of the regional economy, claims that are unsupported by official statistics. On the other are residents and communities who have experienced repeated damage following major storm events, and who question whether current land-use patterns are affordable, sustainable and fair. Rather than escalate rhetoric, it may be more useful to ask a different question: Under what conditions does continuing a known high-risk land use in the face of widespread and costly harm to the wider community shift from being everyday business practice into ‘unconscionable conduct’? ‘Unconscionable conduct’ is a legal concept that has recently come into prominence after companies who violated expected standards of business conduct were prosecuted under the Fair Trading Act by the Commerce Commission. It refers to behaviour that is seriously unfair, oppressive, or inconsistent with good conscience – particularly where one party bears disproportionate risk or harm. The threshold is high. But it is not irrelevant where risks are known, impacts are repeated, and regulatory settings allow those risks to persist. As Newsroom pointed out this week, the Commerce Commission’s first ‘unconscionable conduct’ enforcement actions mark a significant shift for New Zealand businesses, echoing tougher enforcement in Australia. The question then arises – does the conduct of some forestry companies in Tairāwhiti pass this threshold? What is known There is broad agreement on a range of facts. In Tairāwhiti, more than half of the land is nationally classified as being at high risk or very high risk of erosion. It is not disputed that clear-fell harvesting on steep, highly erodible land increases these risks. The region has a documented history of severe rainfall events, and climate projections indicate increasing rainfall intensity over time. The scientific literature and courtroom evidence from regulators and the companies themselves agree that root systems decay after harvest, soils are temporarily destabilised, and woody debris must be carefully managed to avoid mobilisation in extreme weather. Recent Forest Stewardship Council audits and enforcement action in the Environment Court has confirmed systematic non-compliance in aspects of forestry management across most of the companies operating at scale in the region. These findings demonstrate that serious regulatory breaches have occurred and that urgent improvements in both policy and practice are required. There has also been an undeniable demonstration of the impacts of these breaches in recent storm events in Tairāwhiti. In the wake of Cyclone Gabrielle, for instance, damage to private and public property, lives and livelihoods arising from these breaches was extensive and so severe that it provoked community outrage and a ministerial inquiry. After examining a wide range of evidence, the inquiry recommended that clear-felling on highly erodible land in Tairāwhiti should no longer be permitted. At the same time, it is important to acknowledge that not all forestry operations are identical, and not all land carries the same level of risk. The core issue is not forestry per se. It is whether harvesting continues on the most fragile land without sufficient structural change or proper precautions taken to reduce foreseeable harm. The risk allocation question A recurring concern in Tairāwhiti is how risk and reward are distributed. Harvest revenue flows to forest owners and investors. When severe storm damage occurs, infrastructure repair, sediment clearance, and recovery costs are often borne by councils, ratepayers, insurers, taxpayers, landowners, communities and the myriad ecosystems of catchments and the coastal environment. This imbalance does not automatically amount to unconscionable conduct. But where risks are predictable and repeated, their impacts are recurrent and severe, and if no serious effort at mitigation or avoidance is made, legitimate questions about the conduct of the relevant companies will be raised. Avoiding the threshold In order to avoid triggering the threshold for unconscionable conduct, forestry companies in Tairāwhiti must demonstrate a genuine commitment to avoiding severe and repetitive harm to the wider community arising from forestry practices. At the same time, external constraints on these companies must be recognised. A meeting in early February between Eastland Wood Council members and Gisborne District Council staff identified several practical ‘enablers’ that could support retirement of high-risk land while managing legal and financial exposure. These include: Reviewing Overseas Investment Office conditions that may currently require land to remain in plantation forestry, to better reflect agreed transition objectives Amending resource consent conditions that mandate re-establishment in radiata pine after harvest, where those conditions create unintended barriers to transition Exploring, with central government, solutions to NZ Emissions Trading Scheme (ETS) liabilities associated with retiring pre-1990 forest land and addressing carbon value impacts on post-1989 registered areas. These are not minor technicalities, they are at the financial heart of the transition process. Modifications to ETS settings Under current ETS rules, retiring pre-1990 forest land can trigger significant carbon liabilities. For post-1989 registered land, decisions not to replant can affect carbon accounting and safe carbon levels. Without some kind of special exemption, these settings create strong economic incentives to replant radiata pine even where alternative land uses will better manage long-term risk. If policymakers are serious about reducing erosion exposure on the most vulnerable terrain, changing the ETS settings must be part of the solution. Forestry representatives also signalled that where an existing crop is harvested and not re-established in commercial exotics, they would not expect compensation for foregone future rotations – provided carbon liabilities and value losses are appropriately addressed, and that rating obligations reflect active native reversion management. That position offers a pragmatic foundation for progress, and it is to be hoped that legislators can make it happen quickly. Aligning consents with transition goals The meeting also recognised that some existing consent conditions may produce unintended or perverse outcomes. Where consents require automatic replanting in pine, for instance, companies may face legal obligations that conflict with erosion reduction goals. Adjusting those conditions could allow site-specific decisions to be made based on geology, slope stability and catchment risk rather than default replanting assumptions. Importantly, this approach does not eliminate forestry. It differentiates between land that can sustain commercial rotations and land where long-term environmental risk outweighs short-term return. Transparency and collective voice The February meeting also highlighted the value of coordinated communication and governance structures to rebuild trust and present a powerful case to central government. A united regional position with support from the forestry and farming sectors is necessary if central government is to be convinced that transition from a problem the Crown has largely created is vital. Transparency about the amount and location of land retired annually is a practical step that could support shared planning and accountability. This will reassure affected communities and keep the pressure on all parties to stay on track. If transition is to occur at scale, clear data on what land is being retired and agreed criteria for identifying very high risk-terrain is required. It will also benefit from adjustments to the ETS and cross-sector governance arrangements with mandate, clarity and the kind of funding forestry minister Todd McClay declined to provide the region with during January. Without these elements, debate will likely continue and the positive action required will remain elusive. The policy crossroads The question, then, is not whether forestry in Tairāwhiti is inherently unconscionable. It is whether failing to adjust known high-risk land use and industry practices in light of repeated and devastating harm to the wider community could meet that threshold. The difference between defensible commercial activity and business conduct against good conscience often lies in responsiveness. Tairāwhiti does not require more political rhetoric this election year. It requires structural alignment between climate reality, land capability, and regulatory settings, and for positive action to happen at pace.