Summary
Local residents and iwi failed in their challenge to the extension of a water bottling plant on plastic pollution grounds, with the Supreme Court dismissing their appeals by a majority.
Background
OSL operated a kiwifruit orchard at a Bay of Plenty property, along with a water bottling plant which bottled water sourced from an aquifer under the property. They proposed to expand the plant, increasing production capacity for bottled water from 1.9 million litres to 580 million litres per year. To do so, they sought resource consents under the Resource Management Act 1991 (“RMA”), a land-use consent from Whakatane District Council for their proposed expansion of the bottle manufacturing operation, and a water consent from the regional council for the increased take from the aquifer.
Expert evidence showed that the proposed water take would have minimal negative impact on the sustainability of the aquifer.
The land-use consent was opposed by Sustainable Otakiri Inc, a local resident’s group (“SOI”). The water take consent was challenged by an entity affiliated with the local iwi (“TRONA”). Both groups appealed to the Environment Court.
It was in the Environment Court that the environmental effects of plastic disposal were raised for the first time (by the dissenting judge in the case, not the appellants). However, the court majority concluded that it did not have jurisdiction under the RMA to consider such effects.
SOI appealed the Environment Court’s decision based on, among other things, failure to consider the effects of plastic disposal. TRONA appealed based on failure to properly consider tikanga evidence.
In 2025, the Supreme Court heard both appeals.
The case
SOI appeal - Effects of plastic disposal
Section 104(1)(a) of the RMA requires consent authorities to consider any actual and potential effects on the environment of allowing the activity.
SOI argued that the consent authority and lower courts had erred by concluding that the effects from disposal of plastics were too remote from the issue of plastic bottle manufacture to qualify as ‘effects’ per the definition in the RMA. In wrongly excluding these effects from their deliberations, they had failed to comply with s 104(1)(a). They sought for the consent decision to be referred back to the Environment Court for a rehearing.
The majority agreed with SOI that the definition of “effect” in the RMA was, in the abstract, sufficiently broad to extend to the end-user disposal of plastics, including disposal outside New Zealand. The fact that the environmental effects of an activity were dependent on the actions of a third party did not mean that those effects were outside scope, particularly where (as in this case) those third-party actions were inevitable.
However, there must be some limit on the effects that Parliament intended decision-makers to consider when assessing effects in the context of an individual resource consent application. In the context of a particular consent application, some effects would be too remote
The court sympathised with arguments from the respondents in the appeal that dealing the global problem of plastics pollution at the consent level would result in piecemeal and inconsistent regulation. It also accepted that Parliament had already provided for this issue at the national level via the Waste Minimisation Act 2008. However, on its face, the broad definition of effect meant that this problem could also be dealt with at the consent level under the RMA. It could not be said that the RMA and Waste Management Act regimes were incompatible. The Environment Court had erred in law by concluding it had no jurisdiction to consider plastic disposal effects.
However, as the issue had only been raised at a late stage in the proceedings, the majority dismissed the appeal, holding that it would be contrary to procedural fairness to remit the matter back to the Environment Court.
In a dissenting judgment, Winkelmann CJ and Glazebrook J held that they would have allowed the appeal. They adopted largely the same reasoning as the majority but were less equivocal about the recognition of plastic pollution in the RMA, which their reasoning suggests was self-evident. It was for the consent applicant to have addressed these effects in its consent application. Its failure to do so meant that the resulting decisions were tainted by errors of law. In contrast to the majority, the dissent characterised the unfairness of remitting the matter to the Environment Court as a “pleadings point”, which had to be considered against the “devastating effects of plastic pollution on the environment globally”.
TRONA appeal –Consideration of tikanga evidence
On appeal, TRONA argued that the Environment Court had failed to properly consider evidence about the tikanga impacts of exporting water from the aquifer internationally, and the effect this had on kaitiaki responsibilities of the local iwi. Instead, they argued that the court had considered tikanga evidence solely by reference to physical effects on the aquifer and had ignored metaphysical effects. Its resulting conclusion was not available on the evidence and therefore amounted to an error of law.
The court did not agree. The Environment Court had been faced with conflicting evidence from tikanga experts. One emphasised the degradation of kaitiakitanga resulting from exporting aquifer water internationally; the other emphasised the positive effects of job creation among the local iwi. Faced with conflicting witnesses, the court preferred the evidence of the latter because, among other things, it was more consistent with the physical evidence that the water take would no negatively impact the aquifer.
This was a conclusion the Environment Court was entitled to reach on the evidence, and there was therefore no error of law. The majority dismissed the appeal accordingly.
Winkelmann CJ and Glazebrook J (dissenting) would have allowed the appeal. They held that the Environment Court had erred in law in that they had focused on tikanga evidence exclusively by reference to the water take and had excluded metaphysical and other effects from their consideration. There had, accordingly, been a failure to consider adverse effects on the environment as required by s 104(1)(a) of the RMA, and an error of law.
Other grounds of appeal
The court majority rejected appeals from SOI and TRONA on other matters, including points of interpretation around the district plan, and the relevance of Part 2 of the RMA. In contrast, the dissenters would have allowed the appeal on these grounds.
Result
The appeals were dismissed by a majority.
The broader significance of the decision lies in its approach to the scope of “effect”. Both the majority and the minority favoured an expansive approach to the definition, and established that second-tier effects which rely on the actions of third parties (such as plastic pollution and carbon emissions) must be taken into account by local authorities deciding on resource consents unless they are too remote, with little guidance provided about what remoteness means.
The Planning and Natural Environment Bills, currently before Parliament, will repeal and replace the RMA. Because the Natural Environment Bill adopts the same definition of ‘effect’ as the RMA, the issue of plastics pollution is likely to be of ongoing relevance in the new regime. The same applies to activities whose effects arise due to the actions of third parties, including exploration and mining for coal and petroleum.
For information on this or similar cases please contact Director Brigitte Morten.
