Adam Young

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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SUMMARY

The Supreme Court  overturned the Minister for Oceans and Fisheries’ decision on Total Allowable Catch (“TAC”) for the East Coast tarakihi fishery (“East Coast Fishery”), despite Seafood New Zealand succeeding on one ground of appeal. The key issues were whether the Minister’s decision could consider social, cultural, and economic factors (“SCE factors”), and what probability of rebuild success the Minister could choose.

BACKGROUND

Under the Fisheries Act 1996, the Minister for Oceans and Fisheries has a duty to review the TAC of New Zealand’s various fisheries to enable sustainable utilization. In 2019, the then-Minister Stuart Nash, reviewed the TAC of the East Coast Fishery. The stock had fallen below a level that could produce the maximum sustainable yield (“MSY”) and so the Minister was obliged to set a TAC that would allow the stock to recover.

The Minister had already reduced the TAC for the East Coast Fishery a few times and indicated he would revisit it in another year’s time, with further reductions if the fishing industry did not meet their own plan to rebuild fishing stocks within a 20 year timeframe. In his decision on the TAC he recorded that it reflected the economic impact on fishers, their families, and regional communities.

Under section 13(2)(b), the Minister must set a TAC that enables recovery in a “way and rate” that “will” result in the stock being restored, and within a “period appropriate to the stock”, having regard to the biological characteristics of the stock and environmental conditions (“scientific factors”). A mandatory part of this decision is the probability of success of rebuilding the stock. Section13(3) also requires the Minister to have regard to SCE factors when determining the way and rate of the TAC.

The Royal Forest & Bird Protection Society of New Zealand (“Forest & Bird”) challenged the Minister’s decision on the TAC on the grounds that he should only have regard to the scientific considerations based on the best available information, and should not have considered SCE factors. The best available information (the Harvest Strategy Guidelines (“HSS”) and Operating Guidelines (“OG”)) recommended a probability of success of 70%, which Forest & Bird claimed was a mandatory relevant consideration. The Minister adopted an implicit probability of 50%, and had not considered a 70% probability of success.

The High Court determined that SCE factors can only influence the Minister’s decision-making after an “appropriate” period is fixed according to scientific considerations only. It held that the Minister therefore erred by considering SCE factors while determining an “appropriate” period. The High Court agreed with Forest & Bird that the HSS and OG was the best available information and a 70% probability was a mandatory relevant consideration.

The Court of Appeal, by majority, dismissed an appeal by Seafood NZ against the High Court’s decision. It found that the “period appropriate to the stock” set a maximum period that must be fixed by reference to scientific considerations, and only insofar as the HSS included SCE factors in its scientific consideration, could the Minister consider them. It also held by majority that the HSS did specify a default 70% probability of success, and that the Minister was required to consider it.

Seafood NZ further appealed to the Supreme Court.

THECASE

What could the Minister consider when setting a “period appropriate to the stock”?

Seafood NZ submitted that the “appropriate” period for the stock rebuild was to be determined alongside the “way and rate” as a single decision, incorporating scientific and SCE factors. Seafood NZ’s counsel accepted there would be an evaluative step where the Minister assessed the appropriateness of the period with sole regard to the scientific factors, but maintained that this was only a relevant consideration and not a control on the TAC.

The Minister submitted that section13(2)(b)(ii) was a cross-check on the period that results from the “way and rate” analysis. They submitted that the legislation does not compel adoption of the “most appropriate” period to the stock, but that there could be a range of “appropriate” periods with regard to the scientific factors. Where the range of periods are “appropriate to the stock”, the Minister may take the SCE factors into account when choosing among them.

Forest & Bird submitted that the Minister erred by doubling a previous period he had considered “appropriate”, by reference to SCE factors, which they said were legally irrelevant. Rather, they claimed the Minister should have determined the “appropriate” period only by reference to the scientific factors affecting the stock. They accepted that there may be a range of periods that the Minister could then choose from.

The Supreme Court held both subsections (i) and (ii), providing for the “way and rate” and the “period appropriate to the stock”, were intended to constrain the TAC that the Minister could adopt. They acted as a sustainability check. In determining the “appropriate” periods, the Minister’s decision concerns the stock of the East Coast Fishery, not those who have an interest in the stock. Only scientific factors could be considered in determining an “appropriate” period for the East Coast Fishery stock.

The Court held that the Minister does get discretion insofar as the TAC is set within an “appropriate” period as determined by scientific factors. Section 13(2)(b)(ii) uses the indefinite article “a” in  “a period appropriate to the stock”. As long as the TAC is determined with a scientifically “appropriate” period, the Minister could then consider SCE factors in setting the way and rate.

An implied default 70% chance of success?

The Supreme Court found that to satisfy the Act’s requirement for the stock to be restored, the Minister was only required to set a TAC that had at least a 50% chance of success. The 70% probability of success was not a mandatory relevant consideration beyond the required minimum. The HSS and OG, which had the recommended 70% probability of success, also had the assumption that the TAC would not be revisited before the expiry of their build period. The Minister had already adopted a policy in 2018 of reviewing progress and adjusting the TAC as necessary, and so the HSS and OG were outdated at the time of his 2019 decision. They were therefore not the “best available information” and not mandatory relevant considerations for the Minister. On this point Seafood NZ succeeded.

Conclusion

Seafood NZ did not succeed in relegating the “appropriate” recovery period to a “mere mandatory relevant consideration” for the Minister in setting the TAC. Section 13(2)(b)(ii) is a limit on the Minister’s discretion. What periods are “appropriate to the stock” can also only be determined by reference solely to the scientific factors relating to the fish stock; on this Forest & Bird succeeded. However, so long as the Minister sets a TAC within an “appropriate” period, they may take social, cultural, and economic considerations into account when setting the way and rate of the TAC.

Finally, the Minister was not required to consider a default probability of success of 70%, as the information containing this assumption was out of date and therefore not the “best available information”.

‍RESULT

While the Supreme Court partially allowed Seafood NZ’s appeal, the Minister’s decision was still unlawful as he had considered SCE factors when assessing a rebuild period “appropriate to the stock”.  The Minister was required to remake the decision.

The Minister must separate the assessment of the “appropriate” period (and only consider scientific factors) and the “way and rate” analysis (which can include the SCE factors). Owing to the partial success of Seafood NZ’s appeal, the Minister also need only set a TAC with at least a 50% chance for a successful stock rebuild.

For further information on this case or related issues please contact Director Brigitte Morten

Summary

The Supreme Court declined the appeal of water bottler Cloud Ocean Water against the decision of the Court of Appeal in Aotearoa Water Action Inc v Canterbury Regional Council. The Court found that the Canterbury Regional Council was not able to split a “take and use” resource consent, and combine a new “use-only” consent with the “take”portion of the old consent.

Background

Two water bottling companies, Cloud Ocean Water and Southridge Holdings (formerly Rapaki Natural Resources Ltd) had acquired resources consents for the taking and use of water. However, these were from companies in the business of wool scouring and freezing works, and the “use” portion of these consents did not have water bottling within their scope. Cloud Ocean and Southridge applied to the Canterbury Regional Council (“ECan”) for new “use-only” consents for water bottling which were to be applied to their previously transferred consents, the “take” and “use” parts of the consents being decoupled.

The applications were granted, and Aotearoa Water Action (“AWA”) formed to oppose the consents. AWA unsuccessfully challenged the consents in the High Court, but were successful on appeal to the Court of Appeal. Cloud Ocean Water appealed this decision to the Supreme Court. In this appeal ECan took a neutral position, despite being the primary respondent at the High Court and Court of Appeal.

The case

The question for the Supreme Court was whether ECan could decouple the “take” and “use” of a resource consent, and grant a new “use only”consent to be combined with the old “take” consent.

In absence of argument to the contrary, the Court proceeded on the basis that section 14 and 30 of the Resource Management Act (“RMA”) allowed for a new “use” of water to be considered independently from the “take” of water, provided relevant considerations were met. This does not require them to be separate, either. Still, the court expressed concern at the effect of the disaggregation, that companies like Cloud Ocean could hypothetically ‘bank’ the allocation of groundwater under the “take” portions of their consents. The Court was wary that this could be at odds with the effects-focus of the RMA.

Key to the Court’s decision was the wording of ECan’s Land and Water Regional Plan (“LWRP”),which governed the granting of consents. Cloud Ocean’s “use-only” consent application had been granted under rule 5.6, a ‘catch-all’ provision allowing discretionary consent of activities not otherwise covered in the LWRP. Rule5.128 of the LWRP however specifically covered the “take and use” of groundwater, which ECan had distinguished from a “use only” consent. The Court of Appeal found that it was incorrect for ECan to give consent under rule 5.6 as opposed to 5.128, and that that the “take and use” wording of 5.128 was a deliberate choice. The Supreme Court agreed with this conclusion.

Based on the above, the Supreme Court found that there was nothing in the LWRP that allowed for the “take” and “use” consents to be decoupled. ECan should have processed Cloud Water’s application under rule5.128, and made them justify both the take and use of their planned water bottling operation.

Result

Cloud Ocean’s appeal was dismissed, and the consenting process will have to begin again.

In their submissions, AWA had also supported the Court of Appeal’s judgement on the grounds that ECan should have considered the possibility of adverse effects to cultural values and tikanga from the water bottling activity. The Court noted that a judgement on that issue was unnecessary, as the consenting process had to be renewed regardless. The Court nonetheless made its expectation clear that tangata whenua would be consulted.

Justice Williams also issued his own judgement in concurrence, taking a broader view than the majority with a more purposive approach. In his concurrence, Williams assessed that even if rule 5.128 of the LWRP read as “take or use”, resource consent applications for the use of water would have to also justify their take, to manage the risks of inefficient use or over allocation.

For further information on this case or similar issues, please contact Director, Brigitte Morten

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