Topic / Resource Management Act

One Leviathan is enough: nuanced ruling from Whata J on climate and the coal consent process

Vernon Rive . 6/09/2012 8:35:05 a.m.

In a wide-ranging judgment delivered on 24 August 2012 containing Whata J’s most detailed discussion of the scheme, principles and provisions of the Resource Management Act 1991 since his appointment to the High Court Bench in March 2011, the High Court has ruled that climate change considerations of two controversial South Island coal mining proposals are legally irrelevant when assessing land use applications under the Act.
The decision ends a period of uncertainty for the subsidiary of Australian mining company Bathurst Resources Limited as well as beleaguered SOE Solid Energy triggered by declaration applications to the Environment Court by two environmental groups (Royal Forest and Bird Society and West Coast ENT) in March.  The groups had asked for Court determinations that the effects on climate change from millions of tonnes of CO2 that will be emitted when coal from the Mt William North and Escarpment mines is burnt in steel-making factories in India, China, Japan, Brazil and South Africa should be considered during the land use consent process for the mines under the RMA.

In April 2012, acting Principal Environment Judge Newhook ruled in the miners’ favour.  He held that the RMA, as amended by the Resource Management (Energy and Climate Change) Amendment Act 2004 contained no “ambiguity, uncertainty, or room for discretion or “choice"…" regarding the ability to consider the effects on climate change linked with the proposals at issue.  RFBS and West Coast ENT appealed to the High Court.

Whata J’s decision is a sequel to a series of contentious cases between 2006 and 2008 involving Greenpeace, Mighty River Power and Genesis Energy concerning the proposed ‘Marsden B’ coal-fired power station in Northland and gas-fired power station in Rodney.   That litigation culminated in a majority decision of the Supreme Court that in light of the 2004 amendments, consent authorities could not consider the adverse impacts on climate change when assessing applications for air discharge consent needed for non-renewable energy generation projects.  The Court held that the purpose and associated provisions of the 2004 amendments made it clear that Parliament intended that climate change effects from non-renewable energy projects should be regulated at the national level (such as through the emissions trading scheme established by the Climate Change Response Act 2002) and not on a case-by-case basis by regional councils assessing a discharge permit applications.  

The Greenpeace litigation concerned the relevance of climate change effects when assessing applications for air discharge permits for New Zealand-based non-renewable energy projects. What it did not explicitly deal with was whether councils (and the Environment Court on appeal) could consider the effects on climate change when assessing land use applications.   Nor had the Supreme Court addressed issue of whether the fact that extracted coal would be exported and burnt overseas made any difference to the legal position under the RMA.

Those issues were at the heart of the March and July 2012 hearings.

In the Environment Court, counsel for the environmental groups (which included Sir Geoffrey Palmer) argued that neither the 2004 amendments, nor the Supreme Court decision in Greenpeace and created any impediments to considering impacts of climate change from the ultimate burning of mined coal when assessing land-use consents for the mining projects. The Greenpeace cases revolved around interpretation of a particular provisions (104E) which the Supreme Court had accepted explicitly prohibited consideration of climate change and impacts from non-renewable energy projects.  But that provision was not engaged in the present case. Counsel argued that the provision governing the assessment of land-use applications (s104(1)(a)) contained no prohibition - explicit or implied - on considering the downstream climate change impacts of coal combustion. Whether the coal was ultimately burnt in New Zealand or elsewhere, on a plain reading of the section and in light of the sustainable management purpose of the RMA, the adverse impacts on climate change should be considered.

Submissions on behalf of the environmental groups were rejected by the Environment Court in a succinct 14 page decision, which dismissed each of the contentions in short order.  

Whata J reached the same essential position.  However his more detailed decision provides a more nuanced analysis of the issues that will be of general interest to legal, planning and environmental practitioners - whether involved in non-renewable mining and energy generation facilities or not.

Whata J conceded that it might be “intuitively attractive" to treat s104(1)(a) RMA as conferring “a broad or unfettered discretion … to consider the effects of land-use activities, including the greenhouse gas effects of related secondary uses.”  However he reached the view that as a matter of interpretation, the scheme of the Act (as amended in 2004) created a necessarily implication that climate change impacts should not be considered when assessing a land-use application, unless a relevant national environmental standard had been promulgated.

On the question of overseas discharges, His Honour acknowledged that unlike discharges within New Zealand, those discharges could never be the subject of national environmental standards.  So, it could well be that “they will not be subject to assessment under the rubric of sustainable management".  However he found that because nothing in the RMA confers powers to regulate activities extra-territorially, there is simply no jurisdiction under the RMA to consider the effects of coal burning in other countries:

“One leviathan of environmental law (i.e. the RMA) is more than enough for lawyers, experts, environmental managers, planners, the local authorities and the courts of this country. The prospect of a district council assessing whether an end use of coal… is subject to sustainable environmental policy… in Cambodia … China, in Japan or Brazil, Zimbabwe or Kenya… is palpably unattractive.”

RFBS and West Coast ENT have confirmed that they will continue to oppose the mining proposals.  But climate change effects will not be amongst the matters able to be advanced in any future hearings.

(Article in forthcoming Spring 2012 issue of AUT Law School Newsletter AUTlaw)

By Vernon Rive on 6/09/2012 8:35:05 a.m. | Comments (1) | Print

Coal mines, climate change and test cases: initial thoughts on Buller Coal

Vernon Rive . 12/06/2012 5:22:04 p.m.

A feature of New Zealand environmental litigation over the past 30 years has been the willingness of individuals and organizations to venture into the uncertain and at times perilous waters of the courts to test points of law, policy or expert opinion on issues regarded as significant from a public interest perspective.  

In some cases individuals, community or environmental interests have succeeded in securing rulings favourable to their positions.  Select examples include  Environmental Defence Society v Mangonui County Council
, Otorohanga Heritage Protection Group v Otorohanga District Council, and Coromandel Watchdog of Hauraki Inc v Chief Executive of the Ministry of Economic Development.

As often as not, cases brought by environmental groups are unsuccessful.  The manner of the courts’ disposal of such cases varies.  It is not unusual for applications or appeals to be dismissed in fairly short order, with costs awards against the community or environmental interests.  That is especially the case where the position advanced is judged to be untenable, motivations are assessed as clouded, or the way in which the case has been brought and argued lacks focus or adopts an intransigent approach.  

But where the issues are seen as important, the points on appeal or raised by an application tenable, the case prepared well and argued reasonably, judges (even when ultimately unpersuaded by an applicant’s or appellant’s case) acknowledge explicitly or implicitly the import and utility of having significant issues of law, evidence or policy put through the rigours of a court process.   In these cases, there seems to be recognition that there is societal benefit in having matters of public interest and concern tested, in circumstances where if not brought before the court by community or environmental interests, those issues will remain unexamined.

Two 2002 decisions issued concurrently by the Environment Court presided over by Judge Whiting concerning challenges based on the climate change effects of proposed combined cycle power stations are examples of implicit acknowledgment of the points above.  Dismissing appeals brought by the Environmental Defence Society against decisions of the Taranaki Regional Council and Auckland Regional Council, the court declined to impose conditions on discharge consents for generation facilities in Taranaki and South Auckland.  The reasons included the Court’s “considerable disquiet about the efficacy, appropriateness and reasonableness of such a condition.”  Yet a review of both decisions conveys little sense of misgivings at the use of Court time and processes to test matters of perceived significance, even if the prospects of success were always faint.

The content and tenor of the 30 April 2012 decision of the Environment Court in Buller Coal Limited v West Coast ENT Incorporated [2012] NZEnvC 40 (PDF) stands in marked contrast to the 2002 EDS decisions. Buller involved competing applications for declarations by Buller Coal and Solid Energy on the one hand, and environmental groups West Coast ENT and the Royal Forest and Bird Society on the other.  Both sets of applicants sought rulings on the jurisdiction and obligations of decision-makers under the Resource Management Act 1991 to consider the consequential effects on climate change of the grant of land use consents for coalmining activities taking place in New Zealand.  

At the heart of the case were arguments over the proper interpretation of sections 7(i), s104(1)(a) and the meaning of “effect” considered against the statutory and legal backdrop of the Resource Management (Energy and Climate Change) Amendment Act 2004 and decision of the Supreme Court in Greenpeace New Zealand Incorporated v Genesis Power Limited (PDF). The Court ruled in favour of the coalmining companies.  It held that the consequential effects on climate change of discharges of greenhouse gases to air resulting from the combustion of coal could not be considered in the context of hearings on applications for land use consent.

As other commentators have noted, the outcome is not so surprising.  It is consistent with the theme of the 2004 amendments, the majority judgments of the Supreme Court in the 2008 Greenpeace decision as well, of course, as the first instance Environment Court decision which the Supreme Court effectively upheld.  

What is interesting - and from this commentator’s perspective at least, surprising -  is the short shrift given to arguments by counsel (including Sir Geoffrey Palmer for West Coast ENT) for the environmental groups.  The Greenpeace litigation involved a challenge - always likely to be a difficult one - to the conventional interpretation of a provision in the RMA (section 104E) addressing the relevance or irrelevance of the effects on climate change when assessing an application for consent for discharges to air.  Despite those challenges, the Greenpeace position (similar in approach to that adopted by the environmental groups in Buller) found favour with Williams J in the High Court and (in her minority judgment) the Chief Justice in the Supreme Court.

Unlike the Greenpeace case, the Buller Coal proceedings concerned the interpretation of a ‘standard’ RMA provision (104(1)(a)) governing the assessment of effects of an application for consent, not being an application to discharge greenhouse gases to air.  On this issue, all parties agreed that the statutory framework was not identical to that which confronted the Supreme Court in the 2008 proceedings.  Section 104(1)(a) contains no statutory prohibition against considering effects of land use activities on climate change. Nor does the definition of “effects” in section 2.  There seemed to be an argument at least to be had.  The Environment Court clearly thought not, stating “… I am not persuaded that there is any discretion concerning interpretation, or any ambiguity, or choice” (emphasis added).  Costs were reserved.

It has been reported that an appeal to the High Court against the Buller decision is to be lodged. Coalminers and environmental groups alike will await with keen interest not only the outcome of the appeal but also, perhaps, views from the High Court on the appropriateness and utility of environmental groups bringing test cases on issues such as these.

(This is an adapted version of a forthcoming editorial in the June 2012 issue of Resource Management Bulletin)

By Vernon Rive on 12/06/2012 5:22:04 p.m. | Comments (0) | Print

Topic / Resource Management Act

Legal ramifications of the Rena oil spill

Vernon Rive . 15/11/2011 1:17:42 p.m.

"With the Rena’s oil all but salvaged, many might breathe a huge sigh of relief. But the saga is by no way over and if anything, it poses some serious questions around the laws, or lack thereof, that exist in New Zealand to deal with such incidences. To get a little clarity on the matter, we posed a few questions to AUT’s senior lecturer in law, Vernon Rive." 

14 November 2011 article on Idealog Magazine's Sustain Blog.

By Vernon Rive on 15/11/2011 1:17:42 p.m. | Comments (0) | Print

Duty calls

Vernon Rive . 6/09/2010 11:08:38 a.m.

A very recent decision of Ellis J in the High Court (Oteha Investments Ltd v North Shore City Council HC, Auckland, 30 August 2010 CIV-2008-404-6556) clarifies the nature of the duty of care owed by councils towards prospective applicants for resource consents when involved in pre-lodgement meetings where advice is given (and charged for) on local authority planning requirements for proposed developments.

Oteha had bought land intending to construct a 24 unit housing development which would be leased to Housing New Zealand Ltd.  Before lodging its application with the North Shore City Council, it had a meeting with council officers to discuss resource consent requirements.  A few months later it lodged its application taking into account the advice received.

Three months after the application has been lodged, a consultant planner for the Council identified 2 potentially significant requirements under the district plan which had not been previously identified: an esplanade reserve requirement, and a proposed road extension.  The second issue was resolved.  But the first "remained both live and problematic and ultimately led to Oteha withdrawing its original application and instructing new consultants to lodge a fresh application ...". Oteha alleged that the delays occasioned by the need for a new application caused Housing New Zealand to terminate negotiations.  The company sued the council in negligence.

The council applied to strike out the negligence claim, citing earlier decisions which had held that councils would not be liable for giving interpretive advice concerning the district plans.  An initial decision by Associate-Judge Sargisson struck out the negligence claim, holding that the situation was indistinguishable from the authorities in Morrison v Upper Hutt City Council [1998] 2 NZLR 331 (CA) and Bella Vista Resort Ltd v WBPDC [2007] 3 NZLR 429.

On an application for review of the Associate-Judge’s strikeout decision, Ellis J held that the Oteha facts were distinguishable from the authorities noted above.  Contrary to the submissions of the council, he held that it could not be ruled out that a duty of care arises where councils offer a fee-paying service of providing pre-lodgement advice.  So, we have a bit of a strange situation in that paid-for Council advice given in pre-lodgement meetings is potentially subject to a tortious duty of care, but the moment an application is lodged, the duty of care no longer applies.  

As acknowledged in the decision, the holding may have "a chilling effect on the concept of pre-lodgement meetings and advice". If so, that would be a shame. Many people (particularly those not in the position to engage experts at the outset) find it very helpful speaking with council officers about proposed applications before they are formally lodged.  If the result of the decision is to cause councils to "shut up shop" completely, a valuable service would be lost.  On the other hand, as also surmised by Ellis J, "it may simply mean that more care is taken when giving such advice". 

It seems quite likely this matter will go further.  In the meantime I'd expect a change in practice at councils.  Options might include (as noted above) the withdrawal of the pre-lodgment advice service completely.  Or perhaps less radically, an explicit limitation of liability when giving advice, and an increase in fees to cover the increased insurance premiums which reflect the wider council liability in these situations.  

By Vernon Rive on 6/09/2010 11:08:38 a.m. | Comments (2) | Print

Topic / Resource Management Act

Strictly Courtroom

Vernon Rive . 2/09/2010 3:55:56 p.m.

A recent decision of Judge Borthwick in the Invercargill District Court Southland Regional Council v Niagara Sawmilling Company Ltd CRI-2009-025-002700 contains a pithy and really-not-so-surprising affirmation of the strict liability nature of offences under the RMA.

Niagara Sawmilling Company was charged with a number of offences relating to the discharge of dust from sawing and processing timber on its premises.  On the evidence, it was held that some of the dust resulted from the operation of a "Cyclone" dust collector. Niagara had installed the equipment on the expectation that it would contain the dust.  But despite what it considered was its best and reasonable efforts, in fact it did not do so.  One of the other main causes of dust discharge was from wind blowing material off-site.

The lawyer for Niagara acknowledged that dust - being a contaminant under the RMA - had escaped from the site.  However, he argued that it was not being "discharged" by Niagara, because (in relation to the cyclone dust) Niagara had taken all reasonable steps to contain it, and at the time of the discharges, was not aware that dust was escaping.  In relation to wind-borne dust, he argued that the wind (a factor outside of the control of Niagara) had caused the discharge, not Niagara, and so it was not liable under the Act.

As judges sometimes put it, those were quite 'bold' submissions.  Judge Borthwick predictably rejected both arguments.  She held that the relevant offences were strict liability, and can be committed with no element of intention.  Equally, there is no obligation on the prosecution to establish that a person needed to foresee, or be aware of discharges, before they are liable.

Pointedly, she agreed with the lawyer for the Council that Niagara's lawyer's intended defence "appears to be a new or hybrid defence incorporating elements of section 341".  She held that this was not available, nor could such a defence be identified from previous case law, including McKnight v Biogas [1994] 2 NZLR 664 (HC) and URS New Zealand Limited v Auckland Regional Council, Environment Court, Judge McElrea, 25 May 2010, CIV-2008-004-013603.

Tough for Niagara?  Well, maybe.  It had purchased and installed the equipment in good faith, expecting that it would do the job.  But these sorts of laws can't really work any other way if they are to be effective, and create the right incentives to avoid environmental harm.  And the consequences of the "it wasn't us, it was the wind" argument succeeding are really too far reaching and scary to even consider...

Update: At sentencing on 15 November 2010, Judge Borthwick imposed a fine of $60,000 against Niagara, and made enforcement orders requiring an air quality consultant to be engaged to prepare an air quality management plan addressing staff training and implementation of measures to avoid further breaches.

By Vernon Rive on 2/09/2010 3:55:56 p.m. | Comments (2) | Print

Climate skeptics v scientists in court: the NZTR files

Vernon Rive . 17/08/2010 10:27:23 p.m.

With impeccable, or possibly ironic, timing, within a day or so of "a newly registered arm of the New Zealand’s Climate Science Coalition" lodging judicial review proceedings in the Auckland High Court against NIWA “to invalidate the New Zealand official temperature record (NZTR)”:
- the Australian Academy of Science has released a comprehensive report The Science of Climate Change containing an unequivocal finding that “the global average surface temperature has increased over the last century and many other associated changes have been observed. The available evidence implies that greenhouse gas emissions from human activities are the main cause.”
- The New Zealand High Court has issued a decision – significant on a number of other levels – containing a “side-bar” dismissal of an appeal which sought to challenge the Environment Court’s assumptions on climate change. The High Court agreed with the Environment Court’s finding that in an RMA appeal (this was a large windfarm application), it is not the Court’s role to revisit the assumption that climate change is occurring, nor should it enter into a discussion of its causes, directions and magnitude (paras 150-165).

CSC’s move to challenge NIWA’s historic temperature record has been commented on extensively in a number of blog posts and media articles in the last few days. Gareth Renowden at Hot Topic has undertaken a thorough critical assessment of CSC’s position. His commentary on it is well worth a read. The competing claims regarding the scientific validity of NIWA’s data are best assessed by climate science journalists and academic and practising scientists. But I have some initial  thoughts on the legal strategy being employed by CSC.

Judicial review is legal remedy with a long and proud track record in New Zealand. Judicial review proceedings have been employed to resolve (or attempt to resolve) disputes on topics as varied as a proposed 1985 NZRFU rugby tour of South Africa (they stopped it) , the decision to proceed with the Aramoana Aluminium Smelter (didn’t stop it), the divestment of Crown assets to newly formed State Owned Enterprises (stopped it in 1987, not so much after that), and the awarding to a newcomer of a major contract for Auckland medical testing services (halted in the High Court, went ahead after a Court of Appeal reversal).

But is JR an appropriate mechanism for resolving competing scientific claims in the climate change arena?

In 2007, UK plaintiffs backed by Viscount Monckton – also recently in the news – famously judicially reviewed the UK Secretary of State for Education and Skills’s decision to use Al Gore’s An Inconvenient Truth as an educational aid in schools. Lawyers for the father of children at one of the schools complained about a number of alleged errors in the film, and the need for a balanced presentation on what was regarded as essentially a political (as opposed to scientific) issue. The decision was widely reported for its finding that there were nine “errors” in the film: one of which involved New Zealand. However, the court broadly upheld the validity of the scientific research on which the film is based.

Closer to home, to date, there have been a number of occasions where New Zealand courts have been asked to rule on competing scientific positions concerning climate change.

In 1995 – it seems like ancient history now – a Board of Inquiry into the Stratford Power Station considered an argument that because, in global terms, the CO2 discharges would be “negligible” that issue should be put to one side when considering consenting under the RMA. The Board rejected the argument swiftly. It held “… even though the emission from the proposed power station is small by world standards, nevertheless the harm, or potential for harm, throughout the world is very large. A small proportion of a very large amount may itself be large.

That theme was picked up in a number of subsequent decisions, including (in 2002) Environmental Defence Society v Taranaki Regional Council and Environmental Defence Society v Auckland Regional Council, (in 2005) Genesis Power Ltd v Franklin District Council.

Amendments to the RMA in 2005 reduced the scope of legitimate climate change considerations for the Environment Court to (in simplistic terms) the positive effects on climate change of renewable energy projects. Notable decisions in which the legitimacy of climate change impacts was accepted by the Environment Court included (with no attempt to be exhaustive), (in 2007) Meridian Energy Ltd v Wellington City Council, (in 2008) Outstanding Landscape Protection Society Inc v Hastings District Council, Motorimu Wind Farm Ltd v Palmerston North Council, Upland Landscape Protection Society Inc v Clutha District Council, (in 2009) Unison Networks Ltd v Hastings District Council, Maniototo Environmental Society Inc v Central Otago District Council.

The examples above all concerned contested resource management approvals for particular projects.  In those cases it was open to the Environment Court to undertake a merits assessment of the proposals, and rule on competing evidence regarding benefits and dis-benefits advanced by the parties before it.

But judges in judicial review proceedings tend to shy away from “merits assessments”, focusing instead on procedure and compliance with statutory frameworks.  So, it’s unlikely the HC will be as open as the EC on the issues.

A core element of the intended CSC proceeding is an allegation that, in relation to a number of decisions or actions relating to its assessment and publication of the NZTR, NIWA has acted “unreasonably”.

Judicial review proceedings based on alleged unreasonableness are notoriously difficult to succeed on in New Zealand.  In recent years, the courts have adopted a “sliding scale of review”, where the degree or “intensity” with which the court examines contested factual or legal claims increases or decreases depending on a range of factors such as the nature and policy content of the decision, the identity of the decision maker.  In relation to research or publication decisions on issues which involve the application of fine-grained scientific methodologies, it’s hard to imagine the High Court taking anything other than a circumspect approach.

In short, I think the likelihood of the High Court embarking on a comparative review of competing positions on methodologies for adjusting historic temperature records is remote.

CSC is also alleging illegality on the part of NIWA. From the summary of claim, it looks as if CSC will rely on provisions of the Crown Research Institute Act 1992, and in particular on section 5. Section 5 specifies a number of “principles of operation” for CRI’s, including the obligations to “pursue excellence in all its activities” and “comply with any applicable ethical standards”.

Experienced lawyers never say “never” in the dark art of litigation. However, the scenario of CSC demonstrating to the satisfaction of the court that NIWA knowingly delegated tasks to personnel who themselves wilfully manipulated climate data sets seems far-fetched at best.  So too, I reckon, are the prospects of CSC establishing that NIWA knowingly and wilfully published information which it knew to be inaccurate or unreliable.

It is difficult to avoid the impression shared by a number of respected and independent commentators that the whole exercise is an ill-thought through attempt to gain publicity for a cause whose time has well and truly passed.  Or worse, a cynical ploy to distract overworked scientists whose time would better be spent on more productive tasks than rebutting tired, and probably irrelevant, claims through the court process.

NIWA’s statement of defence is due within 30 days of service.  It will be interesting to see how tactical moves on the part of NIWA, and possible applications for intervention by interested parties such as the Environmental Defence Society, pan out.

By Vernon Rive on 17/08/2010 10:27:23 p.m. | Comments (2) | Print

Topic / Resource Management Act

Troubled waters: a tale of two reports

. 26/02/2010 10:07:27 a.m.

In the last two weeks, two reports with significant implications for fresh water management in New Zealand have been released. The reports share a common starting point: there are serious issues with current approaches to fresh water management, including widespread over-allocation and the lack of an integrated approach to water management, with environmental and economic consequences which, already at an unacceptable level, could dramatically worsen in the future.

In response, the authors of the first report recommend a much clearer articulation of the national values relevant to fresh water management, and the provision of central government direction to how these values should be reflected in and implemented through subordinate planning documents. 

Acknowledging that sustainable management involves an “overall broad judgment… that allows for a comparison of conflicting considerations” the authors of the first report nevertheless urge a recognition and protection of natural environmental values of water, even if this means limiting the availability of the resource for human use, including for commercial purposes:

Improvements in fresh water by phasing out over-allocation and contamination require that fresh water is used for enabling economic wellbeing only while, and to the extent that, life-supporting capacity of water and its associated ecosystems is fully safeguarded, and the potential to meet reasonably foreseeable needs of future generations is fully sustained.
Intrinsic values of fresh water are substantial in themselves.  Maintenance, restoration and enhancement of them is not subordinate to economic values of fresh water for potential use for people and communities’ wellbeing.

The second report bemoans the “lack of balance between economic, social, cultural and environmental perspectives” in relation to the management of water resources in one New Zealand region, holding that (amongst other matters) it is an over-emphasis on environmental values, and under-emphasis on the economic benefits of water use that has inhibited the strategic management of water in that region.

There is insufficient consideration given to the fact that the purpose of the RMA is to weigh environmental, social, cultural and economic matters. [The] focus is mostly on ‘natural’ environmental matters. 

There is a lack of economic perspective to balance what is perceived as a pro-natural environment approach in Plans and officer reports…

The second report’s recommendation is to remove all powers of water management, strategy and plan development, consent processing, monitoring and enforcement from an existing regional council, and establish a new standalone regional water authority under new legislation, membership to be appointed by central government. The new Act would have its own purpose, distinct from the purpose of the RMA, “which should involve a mix of economic development, environmental, social and cultural factors.”

The first report, of course, is the Report and Recommendations of the Board of Inquiry in the Proposed National Policy Statement for Freshwater Management.  Chaired by the former Principal Environment Judge Sheppard, and written in crisp prose reminiscent of many landmark Environment Court decisions issued under his direction, this is the outcome of an involved document development and consultation process which included 149 submissions on the draft NPS, 30 further submissions, hearings over 21 days with appearances from 80 submitters, and at least 4 months further deliberations before provision of the recommendations to Government. 

If adopted, the NPS would require regional councils to include in new or amended policy statements and plans a raft of new provisions directed at addressing the key national issues identified as of significant concern, namely:
 Over-allocation of fresh water;
 Contamination of fresh water;
 Loss of wetlands;
 Incompletely integrated management.

The report frankly acknowledges that an NPS will be only part of a wider programme of review and reform.  Much of its content is taken up with explaining why matters urged on it for consideration by submitters are outside of the scope if its inquiry, or indeed, the scope of the RMA.  And while one environmental group, EDS, has criticized the 2030 target date for improved freshwater quality, it conceded that “there is some real merit in the policies and objectives the Board of Inquiry has proposed”.

There are no prizes for identifying the second report as the Report on the Investigation of the Performance of Environment Canterbury, released on 19 February.  It is a no-holds-barred and wide ranging critique of Ecan’s water and senior management team and institutional processes.  It appears likely to lead to the disestablishment of Ecan as we know it, quite possibly in a very short timeframe.  If implemented, in Canterbury at least, the prospect of the RMA as 1-stop-shop is severely bruised, and with it, the hopes of meaningful integrated management – particularly a recognition of the links between land use development and water use and quality.   

Some of the Ecan officers might read the Board of Inquiry report with interest, reflecting on the irony that, superficially at least, their approach of holding the intrinsic values of water as not necessarily subordinate to the economic values of commercial use seems to resonate with the tone and content of former Principal Environment Judge and his Board colleagues’ report.  But that approach – held up as an example of misguided and unbalanced thinking by Messrs Creech and co - could well mean the imminent demise of any meaningful role for them at the council that manages around 70% of New Zealand’s fresh water resource.   

By on 26/02/2010 10:07:27 a.m. | Comments (1) | Print

Testing the water: competing priorities for water takes in the Court of Appeal

Vernon Rive . 9/02/2010 6:01:09 p.m.

A Court of Appeal judgment delivered just before Christmas (Central Plains Water Trust v Synlait Ltd [2009] NZCA 609) is the latest chapter in a long saga of litigation dealing with the vexed issue of competing priorities for consent applications dealing with the same resource: in this case, South Island water.

The decision, judgment delivered by Baragwanath J, affirms the “first-in-first served” principle earlier established in the well-known Fleetwing Farms case, and the principle more recently laid down in Central Plains Water Trust v Ngai Tahu Properties Ltd [2008] NZRMA 200 (CA) that in circumstances where there are competing applications for the same resource, hearing priority is to be determined by who is “first to file a complete application”, and not according to which application is first “ready for notification”.

In Ngai Tahu, it had been left open as to whether the “first to file a complete application” test should apply to scenarios where the competing applicants were not “similar commercial competitors”.  Now, the CA has confirmed that the Ngai Tahu test applies across the board, subject to a potential – and slightly tantalising - “exceptional circumstances” rider, the limits of which will have to be drawn in subsequent cases, if not addressed by legislative reform.

At the heart of the Central Plains decision is an assessment of what the Court described as two competing “themes”: Theme 1 - “efficiency” and Theme 2 - “other policy factors”, further described as “s 5 and the broad concept of sustainable management”.

While accepting that both themes are recognised in Part 2 of the RMA, they were characterised as “each tending in different directions”: crudely summarised, the “efficiency” theme supporting a simpler, quicker, non-discretionary attaining of priority status, once an application that satisfies the basic requirements of s 88 RMA has been lodged (Central Plains’ position); and the “sustainable management” theme supporting a more nuanced, potentially discretionary route to attaining hearing priority which would allow, for example, decisions by Council officers to request further information, or defer the hearing of applications until other related consents are lodged, to influence the question of priority.

Baragwanath J and his CA colleagues reconciled the competing considerations by separating the issue of priority of hearing from the issue of priority of merits. Priority of hearing, it was held, should be determined by reference to s 88:

It is impractical to use as a measure of priority, even as to hearing, the mutable test of what a council officer, more or less cautious, more or less informed, might stipulate under s 91 (or indeed s 92). What matters as to priority of hearing is what Parliament has stipulated in ss 88 and 21, which provide the essential and unwavering architecture.

So, the first to file a complete application has priority of hearing. The second-in-time competing applicant will normally have an opportunity to submit against, and be heard in relation to the first application: this, the Court said, allows the non-priority applicant to have it say on, and for the council (or Environment Court on appeal) to assess, “the Part 2 and other (theme (2)) considerations rather than allow the theme (1) factors to deprive the community of a benefit which it considers outweighs them.”

The CA decision may not be the last word, however…as with the abandoned Supreme Court proceedings in Central Plains Water Trust v Ngai Tahu Properties Ltd, there is one more level of appeal available. Watch this space.

As the CA itself came close to acknowledging, the entire system of allocating fresh water in New Zealand is ripe for a bottom-up review, and reform. That process is winding up – slowly. In the meantime, first-in-first-served, with an application that meets the statutory requirements, but allows for gap-filling down the track, is the order of the day.

By Vernon Rive on 9/02/2010 6:01:09 p.m. | Comments (2) | Print

Topic / Resource Management Act

Cloudy, with a chance of appeals

Vernon Rive . 21/01/2010 3:45:14 p.m.

Over at Hot Topic, Bryan Walker has posted his 19 January Waikato Times article following Environment Judge Newhook’s recent interim decision giving an “indication of a possible positive recommendation” to Crest Energy’s proposed marine turbine power generation project in the Kaipara Harbour (Crest Energy Kaipara Ltd v Northland Regional Council A132/2009).  There are high hopes for marine generation in New Zealand, and this decision is a notable step in that regard.

Crest’s consenting process hasn’t been all clear skies and calm waters. In June 2009, representatives of a Northland hapu of Ngati Whatua (Environs Holdings Ltd) brought judicial review proceedings to overturn an EC decision declining a stay or adjournment of the hearing of various EC appeals on the proposal.  A stay was sought to avoid prejudice to a pending claim under s33 of the Foreshore and Seabed Act that was anticipated if the EC proceeded with the appeal proceedings under the RMA.

The High Court gave the application reasonably short shrift, holding that the claimants could run their arguments (including concern at expected prejudice to rights that may be confirmed under the Seabed Act) in the RMA proceedings, also noting the EC’s role in relation to the restricted coastal activity consents needed for the marine turbine operation was recommendatory only. As with the Whangamata Marina case, the Minister of Conservation has the final say, a factor (the HC said) that “adds a safeguard to the process from the group claimants’ point of view”.

The EC appeal proceeded.  In the event, the Court was not ultimately swayed by extensive submissions and evidence on the part of Environs in opposition to the RCA consents, holding (amongst other matters) that Crest’s offer of a Memorandum of Understanding and proposed funding of a trust for environmental restoration in and around the Kaipara Harbour “can be seen to address aspects of cultural offence deriving from biological and physical degradation of past land and water management practices, and together with satisfactory conditions of consent addressing ecological and other biophysical matters, should, if those things are adequately addressed, amount to adequate provision for the matters the subject of Section 6(e).”

The EC has asked for more information on monitoring and the proposed conditions of consent, however all signs point to a positive final recommendation, once i’s are dotted and t’s crossed.

Turning to wider issues of energy policy, as Bryan notes, there are question marks around government priorities for renewable energy generation:

In the case of marine energy [the Government] has, admittedly, provided $8 million over a period of four years to support selected projects. But it committed $20 million over three years to gather seismic data in support of oil and gas exploration, and has extended tax exemptions for offshore exploration.…In a rational world we’d be more interested in finding ways of leaving it in the ground, knowing, as we now do, the fearful prospects ahead if we keep burning the stuff.  There’s still some priority-sorting needed at government level.

Even assuming Government gets on board, quite how the “priority-sorting” should best demonstrate itself is an interesting question in itself, as was seen in a rather different decision by another division of the Environment Court on another controversial renewable energy project – Meridian’s planned 176 wind turbine Project Hayes (Maniototo Environmental Society Inc v Central Otago District Council C103/2009).

In Maniototo an “All of Government” submission in support of the proposal under section 141A(4)(c) RMA was considered, the issues advanced on behalf of the Crown “duly assessed” and “had regard to”, but the Crown’s involvement in support “as an ‘other matter’ for the purposes of section 104(1)(c)” was ultimately not of sufficient moment to offset the concerns of the majority of the Court with impacts on landscape, and its assessment that Meridian had not sufficiently analysed relevant alternatives.

The Maniototo decision has been criticised for creating “a new test for projects to overcome which is unworkable; which will result in planning paralysis and in conflict between organisations wanting to advance separate projects”.  Meridian has appealed to the High Court, whose decision may well prove to be one of the more significant RMA judgments in 2010.

In the meantime, its hard to escape the view that clearer central Government direction on issues of national significance in the renewable energy arena – the kind of guidance that will not simply be relegated to ‘another matter’ to be thrown in the mix - is sorely needed.  Something like, say, a clear NPS on Renewables?  It can’t be far off, surely…

By Vernon Rive on 21/01/2010 3:45:14 p.m. | Comments (2) | Print

Other article topics >>

Wind Farms

Official Information Act


Environmental Economics

Resource Management Act

Climate Change



I’m an Auckland based writer, researcher, lawyer and lecturer specialising in environmental, resource management and public law.  My particular interest is in the international law framework influencing domestic law and policy on climate change and biodiversity protection.  I'm the author of chapters on the International Framework, New Zealand Climate Change Regulation and Adaptation to Climate Change in the 2011 Lexis Nexis-published book Climate Change Law and Policy in New Zealand and the general editor of the Resource Management Bulletin.  I also lecture in Public, Resource Management Law and International Environmental Law at AUT Law School.