Case Brief: Muaūpoko Tribal Authority Inc v Minister for the Environment [2023] NZCA 641

Summary

Muaūpoko Tribal Authority (Muaūpoko) and Te Rūnanga o Raukawa (Raukawa) succeeded at the Court of Appeal in an application to quash an exemption for specified vegetable-growing regions from national bottom-lines (the “Vegetable Exemption”) in the 2020 National Policy Statement for Freshwater Management (“NPS-FM”).

Background

Muaūpoko and Raukawa represent iwi and hapū who both claim mana whenua over Lake Horowhenua and the Lake’s outlet, the Hōkio stream. These bodies of water are heavily polluted owing to decades of discharge into the lake, including fertiliser run off from regional vegetable growing.

The 2020 NPS-FM implemented the Government’s policy of Te Mana o Te Wai (“TMOTW”), which prioritised the health of freshwater bodies over the health and economic needs of communities. The NPS-FM provided objectives and bottom lines for water quality that Regional Councils would implement.

Vegetable growers expressed concern to the Minister that they would not be able to meet the bottom lines without significantly cutting back on fertilisers, threatening production viability. In response, the Vegetable Exemption was added to the NPS-FM, which permitted Regional Councils to set water quality targets below national bottom lines for 10 years for select vegetable growing regions, so long as the targets continued to improve the state of local water bodies without compromising food security and the domestic supply of fresh vegetables. Lake Horowhenua and the Hōkio Stream fell within this exemption.

The Minister for the Environment undertook limited consultation with Muaūpoko and Raukawa regarding the Vegetable Exemption, but this was only after an ‘in-principle’ decision had already been made to include it in the NPS-FM.

Muaūpoko and Raukawa unsuccessfully challenged the Vegetable Exemption in the High Court. The judgement stated that it did not contravene the Resource Management Act 1991 (“RMA”) and that a balance could be struck between the Vegetable Exemption and the TMOTW principles. The High Court also held that the Minister had not failed to consider mandatory relevant considerations, there had been adequate consultation on the policy, and there was no breach of the principles of the Treaty of Waitangi.

The case

The Court of Appeal accepted that the Minister had acted in good faith throughout the process, and had made some efforts to undertake consultation on the Vegetable Exemption with Muaūpoko and Raukawa. The Court however held that this consultation was not appropriate or sufficient.

The Court noted that consultation had to give meaningful opportunity for input by submitters. This included properly informing the groups being consulted about what is being proposed and giving them adequate time to prepare and make their views known. The Court noted various contextual factors with regards to Lake Horowhenua and the Hōkio Stream that required extra diligence on the part of the Crown when it undertook consultation on the proposed Vegetable Exemption. These included:

• The long and complicated history of Lake Horowhenua with local iwi and hapū, and their relationship with the Crown;

• Muaūpoko and Raukawa’s claims to mana whenua over the Lake;

• The fishing and property rights iwi and hapū had in the lake;

• The Lake’s status as a taonga, the pollution of the Lake, the Crown’s responsibility for the pollution, and the Crown’s obligations under the Treaty to actively protect taonga; and

• The NPS-FM’s emphasis on TeMana o Te Wai and recognition of the role of Māori in freshwater management.

Muaūpoko and Raukawa were given little information when the Minister consulted with them, far less information than what was available to the Minister. They were also given very little time to consider that limited information, investigate alternatives to the Vegetable Exemption, and respond to the Minister. This did not meet the Minister’s obligation to undertake consultation.

The Court also held that the Vegetable Exemption “effectively introduced a new matter of national significance” to the NPS-FM, being the importance of the vegetable growing areas’ supply of fresh vegetables and national food security. Given that the exemption would require Regional Councils to contend with possible conflicts between the principles of TMOTW and the Vegetable Exemption, the Minister should have considered withdrawing all or part of the proposed NPS-FM. This would have enabled the Minister to undertake wider rather than targeted consultation on the Vegetable Exemption.

In coming to its judgement, the Court noted the Government’s desire for quick action on water quality reform, but considered that the situation still required considerable caution on the part of the Minister.

The Court also briefly commented on the other issues raised by the parties, citing the reasoning of the High Court judgement. The Court held that:

• Section 5 and part 2 of the RMA did not contain environmental bottom lines that were breached by the Vegetable Exemption;

• The Vegetable Exemption was arguably inconsistent with other parts of the NPS-FM, but conflicts were likely to be rare if policies were properly construed;

• The Minister was not required to consider the relative strengths of Muaūpoko’s and Raukawa’s claims to Lake Horowhenua; and

• The Court considered it unnecessary to address the other Treaty considerations raised on appeal, given they were likely to be raised in the further consultation now required of the Minister.

‍Result

The Court of Appeal allowed the appeal, quashing (one could say squash-ing) the Vegetable Exemption as contained in clause 3.33 and Appendix 5 of the 2020NPS-FM. The Minister was directed to reconsider the exemption.

For further information relating to this or similar cases please contact Director Brigitte Morten

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