Court decision sets up a big year for freshwater

Analysis: Canterbury is, once again, putting freshwater issues front and centre - not just for the province itself but arguably for the country, in an election year.

Three days before Christmas, the High Court found Canterbury's regional council, ECan, errantly included a rule in its regional plan permitting farm pollution, under certain circumstances.

But the Environmental Law Initiative, which took the judicial review, didn't get everything it wanted. The legal challenge was found to be barred by a section of the Resource Management Act, and Justice Cameron Mander said he wouldn't have quashed the rule anyway.

Before delving into the judgment let's consider the context in which it landed.

Over the past two years, the coalition government has prevented councils from bringing in greater protections under Labour's national policy statement to manage freshwater, ordered a review of that statement, changed the law to thwart court judgments, and foreshadowed a more permissive resource management regime, including for farmers.

There's also the axe hovering over regional councils, and the government's pre-Christmas announcement of a mega-ministry, merging environment, transport, housing and urban development, and Internal Affairs' local government functions.

It's reasonable to assume freshwater will be a hot topic in this year's election - partly, perhaps, because cow herds are expanding, including in areas already experiencing poor water quality.

Politically, there's room within the coalition for National, New Zealand First and Act to differentiate themselves on freshwater - especially when much of the policy moves have tended in one direction.

Given Act's firm, pro-farming role via Associate Environment Minister Andrew Hoggard, the National Party, in particular, has a golden opportunity to set a more centrist agenda. The bigger risk, perhaps, is staying silent on freshwater.

The opposition's job may seem easier but isn't necessarily so. Articulating a vision is important - but it needs to be realistic, and easily understood.

Labour had a go when it was in power by saying it wanted to see material changes to waterways within five years. Those five years were up in August last year, with little progress.

Obviously, progress was hindered - or reversed, in some cases - by the government quashing Te Mana o Te Wai, a policy requiring councils to put environmental health first, and halting the rollout of farm environment plans.

Two big problems are getting in the way: the lack of consensus, leading to dramatic policy swings, and the time it takes for central government direction to flow through councils and their plans.

(Add to that opposition from well-organised and well-funded vested interests.)

If the two big political parties believe there should be a consensus for infrastructure, they should be working on similar plans for freshwater.

We know what the problems are, and the fixes, while difficult, are clear. The public has already waited years while experts debated the finer points, and the Land and Water Forum honed its recommendations.

What's needed now is a clear vision and funding, paired with concrete improvements over realistic timeframes, and trigger points for action if bottom lines aren't met.

If politicians are unwilling or unable to protect freshwater, others are willing to intervene by taking court action, including Ngāi Tahu, and the Environmental Law Initiative.

Which brings us back to the December 22 High Court judgment.

Jurisdictional precondition

The Law Initiative's argument was that ECan was required, under section 70 of the Resource Management Act (RMA), to be "satisfied" rule 5.63 in the Canterbury land and water regional plan wasn't likely to cause adverse environment effects on aquatic life.

(The proposed regional plan was first notified in 2012 - after John Key's government sacked elected councillors and appointed commissioners - with the council receiving the amended plan the following year, and partially approving it in August 2015.)

The rule said discharging nutrients onto or into land, which may contaminate water, is permitted if the farming activity was allowed under other plan rules.

Barrister David Bullock, for the initiative, said at the hearing, this was, like a controversial Court of Appeal decision, a jurisdictional precondition for which the council had produced no evidence - so the rule had to go.

Among the arguments put by ECan's lawyer Philip Maw were the case was an attempt to re-litigate matters considered years ago, and there was a fatal legal blow to the judicial review under section 83 of the RMA.

Farmers couldn't just immediately cease discharging nutrients, ECan said, and farm companies argued they'd be at risk of widespread and significant non-compliance.

Quashing the rule would require thousands of new consents to be processed, ECan said, creating a years-long backlog.

In his decision, Justice Mander said there was no written record to show an assessment of the likelihood of environmental effects from rule 5.63, and it wasn't explicitly addressed in an independent hearing panel's report.

The issue should have been grappled with by the panel, and "squarely decided on the basis of expressed reasons".

"Taken as a whole, the state of the evidence regarding the potential impact of the discharge of contaminants as a result of farming activities on the health of the region's waterways was, at best, equivocal."

There was a "clear controversy", and expert witnesses expressed "competing professional views".

"In large measure, the uncertainty of the expert opinion regarding the efficacy of the proposed nutrient management rules, in terms of their potential effects on water quality and consequent impact on aquatic life, and the uncertainty of the science relating to nutrient loss, contributed, at least in part, to the nutrient management rules being 'completely rewritten'."

(However, rule 5.63 was largely unchanged.)

The controversy centred on the connection between zones with poor water quality and the significant adverse effects from nutrient levels. But the hearing panel didn't explain how the revised rules "resolved this ambiguity".

In a practical sense, Justice Mander had "considerable reservations" about whether the RMA test, of assessing the likely environmental effects of a permissive regime, could realistically be applied in such a proposed region-wide rule, or assessed with "any degree of confidence".

But that didn't mean, as a matter of law, the council could shirk its statutory obligations.

The council had argued its decision to include the rule was valid. But Mander said the lack of evidence, and clear reasons for its decision, "severely undermines that stance".

Mander found the council did err "because the decision-making record does not allow me to conclusively determine that it properly addressed itself to that issue, or had an adequate evidential basis upon which to make that decision".

(The Law Initiative's attempt to admit further evidence - a 2024 email exchange between an ECan staffer with a Ministry for the Environment official - was declined by the judge.)

However, ECan's lawyer, Maw, argued - and Mander agreed - the judicial review was barred by section 83 of the RMA, which limits challenges to a regional plan once it's made operative.

Last month's judgment said the court would not have been obligated to set aside or quash the decision to include rule 5.63 in the regional plan, because of the delay in the challenge being made, the "significant prejudice" to farmers, and extensive changes made subsequently to the plan.

"The subject of the proceeding is an administrative decision made some 10 years ago about a rule that formed part of a highly detailed and complex regulatory scheme which largely no longer applies, at least … to the 'at-risk' catchments which have since been made subject to specific, sub-regional rules."

Mander declined to grant the judicial review and awarded costs to the council.

Canterbury: A freshwater powerhouse

In a statement on December 23, the Law Institute's director of research and legal, Matt Hall, said rule 5.63 "effectively green-lit further intensive farming" in catchments "already under stress". That meant higher pollution loads were "locked in", he said, making freshwater restoration harder.

"There is a clear public interest in ensuring Canterbury's freshwater is protected by evidence-based, precautionary decisions that put people and ecosystems first."

Newsroom asked ECan for comment on December 23 but its offices were closed.

Why is Canterbury so important to freshwater?

In 2022, it had 480,000 hectares of irrigated agricultural land area, about 63 percent of the country's total. (Irrigation enables more intensive farming.)

Even before a recent spike in agricultural intensification, there were serious concerns about water quality, with many degraded river catchments.

At hearings in 2013, freshwater ecologist Russell Death, who gave evidence for Fish & Game, said ecosystem health in many of Canterbury's lowland and urban waterbodies was extremely poor.

(Death worried increased agricultural intensification could result in significant adverse effects, if not managed properly. However, environmental scientist Shirley Hayward, for Fonterra, DairyNZ and Horticulture NZ, said data in Death's evidence "illustrates a lack of correlation between nitrate concentrations and indicators of aquatic health".)

Given the decline in Canterbury waterways, as stated, repeatedly, during last year's Ngāi Tahu freshwater case, there is arguably a stronger case for environment improvements now.

This article was first published by Newsroom.