From:
Hearings Administrator <[email address]>
Sent:
Tuesday, 26 July 2022 12:21 pm
To:
Hearings Administrator
Subject:
Amended PORPS Memorandum on Behalf of the ORC for the Freshwater Hearings
Panel dated July 25th 2022
Attachments:
AMENDED Memorandum for Hearings Panel from ORC Dated 25th July.pdf
Morena,
It has been bought to our attention that the judgment attached to the memorandum sent earlier had
annotations on them.
This morning the Court also provided an amended judgment, which amended minor errors.
I attach a clean copy of the memo with the amended judgment for redistribution.
Please disregard the memo previously circulated.
Regards,
Hearings Administrator
[email address]
1
BEFORE THE FRESHWATER HEARINGS PANEL CONVENED BY THE CHIEF
FRESHWATER COMMISSIONER
IN THE MATTER
of the Proposed Otago Regional Policy Statement
2021
MEMORANDUM ON BEHALF OF THE OTAGO REGIONAL COUNCIL
Dated 25 July 2022
ROSS DOWLING MARQUET GRIFFIN
Telephone:
(03) 477 8046
SOLICITORS
Facsimile:
(03) 477 6998
DUNEDIN
PO Box 1144, DX YP80015
Solicitor: SJ Anderson
SJA-266090-1095-316-V1
MEMORANDUM ON BEHALF OF THE OTAGO REGIONAL COUNCIL
May it please the Panel:
High Court Judgment
1
The High Court has given its judgment in the declaratory judgment
proceedings concerning this freshwater planning process.
2
The judgment is
attached.
3
At paragraph [231] of the judgment the Court has made declarations as
follows:
(a)
The Otago Regional Council’s determination that the whole of the
proposed Otago Regional Policy Statement 2021 is a freshwater planning
instrument under s 80A(1)−(3) of the Resource Management Act 1991 was
in error and not in accordance with the requirements of s 80A.
(b)
The Otago Regional Council must now satisfy itself as to which parts of
the proposed regional statement relate to freshwater and so constitute a
freshwater planning instrument through giving effect to the National Policy
Statement for Freshwater Management 2020 or otherwise relating to
freshwater.
(c)
Following its determination as to that, the Otago Regional Council must
continue with the preparation of those parts of the plan that are not part of
the freshwater planning instrument, in accordance with the process set out
in pt 1, sch 1 of the RMA.
(d)
Those parts of the proposed regional statement that are determined by the
Otago Regional Council to be parts of a freshwater planning instrument
are to be publicly notified as a freshwater planning instrument, and are to
be subject to the freshwater planning process in subpt 4 of pt 5 and pt 4 of
sch 1 of the RMA 1991.
Consequences
4
The judgment has immediate effect, notwithstanding that it may be
appealed.
5
The freshwater planning process before this Panel is therefore at an end.
6
The constitution of this Panel is also at an end.
Page
2 of
3
7
After declaration (d) is implemented by Otago Regional Council the
resulting freshwater planning documents wil need to be submitted to the
Chief Freshwater Commissioner afresh, and a new freshwater hearings
panel wil then need to be convened.
Submission
8
Otago Regional Council submits that it would be appropriate for the Panel
to issue a minute to the submitters recording:
8.1
the declarations made by the High Court; and
8.2
that this freshwater planning process, and the constitution of the
Panel, is at an end.
The Non-Freshwater Parts of the PRPS
9
After Otago Regional Council has determined which parts of the proposed
regional policy statement relate to freshwater it wil contact submit ers
regarding continuation of the process under Part 1 of Schedule 1 of the
RMA for the remainder of the proposed regional policy statement.
Simon Anderson
Counsel for Otago Regional Council
25 July 2022
Page
3 of
3
IN THE HIGH COURT OF NEW ZEALAND
DUNEDIN REGISTRY
I TE KŌTI MATUA O AOTEAROA
ŌTEPOTI ROHE
CIV-2021-412-000089
[2022] NZHC 1777
BETWEEN
OTAGO REGIONAL COUNCIL
Plaintiff
AND
ROYAL FOREST AND BIRD
PROTECTION SOCIETY OF NEW
ZEALAND INCORPORATED
Defendant
Hearing:
8 February 2022
Appearances:
A J Logan for the Otago Regional Council
P D Anderson and M Downing for Royal Forest and Bird
Protection Society of New Zealand Inc
L A Andersen QC for Port Otago Limited
P E M Walker and S W Christensen for Oceana Gold (New
Zealand) Ltd
M R Garbett and R A Kindiak for Dunedin City Council and
Waitaki District Council
J M Derry and R G Muston for Minister for the Environment
P A C Maw and K T Dickson for Canterbury Regional Council
S J Scott for Queenstown Lakes District Council and Central
Otago District Council
S R Gepp for Rayonier Matariki Forests Limited and Ernslaw One
Limited
K L Hockly for Te Rūnanga o Ngāi Tahu
M A Baker-Galloway for Otago Fish & Game Council –
appearance excused
Judgment:
22 July 2022
JUDGMENT OF NATION J
OTAGO REGIONAL COUNCIL v ROYAL FOREST AND BIRD PROTECTION SOCIETY OF NEW
ZEALAND INCORPORATED [2022] NZHC 1777 [22 July 2022]
Introduction
3
Background
14
The relevant legislation
27
Integrated management, the fundamental concept of Te Mana o te Wai
and ki uta ki tai
28
Submissions in support of the whole of the proposed regional statement
being a freshwater planning instrument.
35
Otago Regional Council
35
Ngā Rūnanga
53
Canterbury Regional Council
63
Submissions of parties who argued the ORC’s decision that the proposed
regional statement, as a whole, was a freshwater planning instrument
was not open to it on a correct interpretation of s 80A of the RMA
74
The Minister for the Environment
75
Forest and Bird
78
Oceana Gold
80
Port Otago Ltd
86
Dunedin City Council and Waitaki District Council
88
Central Otago District Council and Queenstown Lakes District Council
95
Rayonier Matariki Forest Ltd and Ernslaw One Ltd
105
The interpretation of s 80A of the RMA
108
Legal principles
108
Why the meaning of the legislation is not clear
111
Legislative process
117
Interpretation of s 80A
148
Conclusion as to how s 80A must be read
165
Why the ORC’s interpretation and application of s 80A of the RMA was
in error
169
The Court’s task
173
The Court’s view as to how the words “relates to freshwater” are to be
interpreted and applied
183
What, if any, declarations should be made in light of the earlier
conclusions in this judgment?
211
Costs
232
Concluding summary
233
[1]
In 2020, through an amendment to the Resource Management Act 1991
(RMA), Parliament introduced a new freshwater planning process for regional plans
or policy statements, or parts of them, that are freshwater planning instruments as
defined in the Act.
[2]
Through these proceedings, the Court must decide whether there was an error
of law in the Otago Regional Council (ORC) deciding that the whole of its proposed
regional statement was a freshwater planning instrument and so subject to the
freshwater planning process.
Introduction
[3]
The purpose of the RMA is to promote the management of the use,
development and protection of natural and physical resources to enable people and
communities to provide for their social, economic and cultural wellbeing and for their
health and safety while protecting the environment.1
[4]
Under the RMA, the Minister for the Environment can and has issued national
policy statements stating objectives and policies for matters of national significance
relevant to achieving the purpose of the RMA.2 Territorial authorities, including
regional councils3 and district councils, must consider and give effect to those
statements in preparing their policy statements and plans.4
[5]
Regional councils must have a regional policy statement in accordance with
their functions under s 30 of the RMA and other RMA provisions.5 The purpose of a
regional policy statement is to achieve the purpose of the RMA by providing an
overview of the resource management issues of the region and policies and methods
to achieve integrated management of the natural and physical resources of the whole
region.6
1
Resource Management Act 1991 [RMA], s 5.
2
Sections 45 and 45A.
3
A number of unitary authorities also have the functions of both regional councils and district
councils. When referring to regional councils, I am also referring to unitary authorities insofar as
they are exercising regional council functions.
4
RMA, ss 62(3), 67(3)(a) and 75(3)(a).
5
Sections 60 and 61.
6
Section 59.
[6]
The functions of regional councils include:
(a) preparation of objectives and policies as to any actual or potential effects
of the use, development or protection of land which are of regional
significance;7
(b) preparation of objectives and policies to ensure there is sufficient
development capacity in relation to housing and business lands to meet the
expected demands of the region;8
(c) control of the use of land for the purpose of maintaining and enhancing
the quality and quantity of water in water bodies and coastal water;9 and
(d) control of discharges of contaminants into or onto land, air or water and
discharges of water into water.10
[7]
District councils must have district plans to assist them in carrying out their
functions in order to achieve the purpose of the RMA.11 They are required to give
effect to national planning documents and any regional policy statement, and have
regard to proposed regional policy statements.12
[8]
Under the RMA, interested parties can make submissions to regional councils
as to proposed regional statements. Councils can then decide what should be in their
regional statements.13 Submitters who are dissatisfied with the regional council’s
decision can appeal to the Environment Court.14 This is a specialist tribunal with
expertise as to environmental and planning issues. The Environment Court can then
consider the issues afresh with all the same powers the regional council had.15 The
parties to an appeal to the Environment Court have rights of appeal to the High Court
but only as to errors of law.16
7
Section 30(1)(b).
8
Section 30(1)(b)(a).
9
Section 30(1)(c)(ii) and (iii).
10 Section 30(1)(f).
11 Section 72.
12 Sections 75(3)(c) and 74(2)(a).
13 Schedule 1 cl 10.
14 Schedule 1 cl 14.
15 Section 290(1).
16 Section 299.
[9]
On 1 July 2020, through the Resource Management Amendment Act 2020 (the
Amendment Act), the RMA was amended to establish a new freshwater planning
process to deal with freshwater issues in regional plans and policy statements.
[10] The Amendment Act required submissions on freshwater issues to be
considered by a separate freshwater hearings panel. That panel then makes
recommendations to a regional council. The regional council can accept or reject any
recommendation.17 Submitters have a right of appeal to the Environment Court but
only if the recommendation of the freshwater hearings panel has not been accepted.18
Submitters can appeal to the High Court if the regional council accepted the
recommendation of the freshwater planning hearings panel but only on questions of
law.19
[11] The Minister for the Environment issued a national policy statement for
freshwater management in 2014. This was amended in 2017. The purpose and effect
of that statement is to require territorial authorities, including regional and district
councils, to improve their management of and carry out their functions to improve the
quality of freshwater in all parts of New Zealand/Aotearoa.20
[12] In September 2020, that National Policy Statement was replaced by the
National Policy Statement for Freshwater Management 2020 (National Freshwater
Policy).
[13] In 2021, the ORC notified that it had prepared a new Proposed Otago Regional
Policy Statement June 2021 (proposed regional statement) and had decided the whole
of the statement was a freshwater planning instrument so had to be subject to the
freshwater planning process.
17 Resource Management Amendment Act 2020 [Amendment Act], s 22; RMA, s 80A.
18 Amendment Act, s 103(3); RMA, sch 1 cl 55.
19 Amendment Act, s 103(3); RMA, sch 1 cl 56.
20 As seen in the preamble to the National Policy Statement for Freshwater Management 2014
(amended 2017) at 4.
Background
[14] On 1 October 2019, Professor Peter Skelton produced a report for the Minister
for the Environment reviewing the freshwater management and allocation functions at
the ORC.
[15] On 18 November 2019, the Minister for the Environment, under s 24A of the
Act, recommended the ORC undertake a complete review of its regional policy
statement with the intention that it be made operative by 31 December 2023. The
ORC accepted that recommendation and embarked on the significant task of reviewing
its partially operative regional policy statement.
[16] The National Planning Standards of November 2019 require a regional policy
statement to have chapters and sections on various subjects including integrated
management, land and freshwater, tangata whenua/mana whenua, air, coastal
environment, energy infrastructure and transport, and historical and cultural values.
[17] On 1 July 2020, through the Amendment Act, Parliament introduced a new
subpt 4 of pt 5 of the RMA. The amendments provided for the separate planning
process for proposed regional statements that give effect to any national policy
statement for freshwater management and/or that relate to freshwater. Such a
document is described in subpt 4 as a freshwater planning instrument.
[18] The National Freshwater Policy took effect on 3 September 2020. It
established Te Mana o te Wai as its fundamental concept. This concept refers to the
fundamental importance of water and recognises that protecting the health of
freshwater protects the health and wellbeing of the wider environment. The objectives
of the National Freshwater Policy include, first, ensuring natural and physical
resources are managed in a way that prioritises the health and wellbeing of water
bodies and freshwater ecosystems.21 Amongst other matters, regional councils are
required to adopt an integrated approach, ki uta ki tai, as required by Te Mana o te Wai
to recognise the interconnectedness of the whole environment.22 Every regional
21 National Policy Statement for Freshwater Management 2020 [National Freshwater Policy], pt 2,
objective 2.1.
22 Clause 3.5.
council must make or change its regional policy statement to the extent needed to
provide for the integrated management of the effects of the use and development of
land on freshwater and on receiving environments.23
[19] On 11 September 2020, the Minister for the Environment wrote to the ORC.
He recognised the significant progress it had made in acting on his earlier
recommendation but agreed to an extension to allow the ORC to have regard to the
National Freshwater Policy.
[20] On 16 June 2021, the proposed regional statement was presented to the ORC.
With the proposed statement was a detailed evaluation report prepared under s 32 of
the RMA. The report identified that “[t]he integrated management of the natural and
physical resources of the Otago region is at the heart of the planning approach to
resource management, as expressed in the [proposed regional statement]”.
[21] At its meeting on 16 June 2021, the ORC confirmed that the whole of the
proposed regional statement was a freshwater planning instrument as defined in s
80A(2) of the RMA.
[22] On 24 June 2021, the defendant (Forest and Bird) wrote to the ORC. They
said:
In principle we support the desire and need for more integrated management.
However, the wording of s 80A (3) of the RMA is quite clear that only the
parts of freshwater instruments that relate to freshwater can go through the
freshwater planning process. That’s what it’s designed for.
[23] While Forest and Bird supported moves to improve the proposed regional
statement, especially with regard to freshwater, they considered there was a risk that:
… due to an inadequate and arguably unlawful process, the [proposed regional
statement] in its entirety could be successfully appealed at the end of the
process by parties who are not happy with it. This would mean a waste of a
huge amount of time, money and effort by everyone who engages in it.
[24] The ORC publicly notified the proposed regional statement on 26 June 2021.
The notice said the entirety of the proposed regional statement was a freshwater
23 National Freshwater Policy, cl 3.5(2).
planning instrument and therefore subject to the freshwater planning process. The
notice also called for submissions, which were due by 3.00 pm on 3 September 2021.
[25] On 3 September 2021, the ORC filed an application under the Declaratory
Judgments Act 1908 for a number of declarations. I refer to these in detail later in the
judgment.24 First and foremost, the ORC sought a declaration that the whole of the
proposed regional statement is a freshwater planning instrument.
[26] On 21 September 2021, Associate Judge Paulsen directed the proceedings be
served on all primary submitters to the proposed regional statement and there be public
notice of the proceedings in the Otago Daily Times. The parties heard in these
proceedings were those who filed statements of defence or notices of appearance for
ancillary purposes.
The relevant legislation
[27] Section 80A of the RMA states:
80A Freshwater planning process
(1) The purpose of this subpart is to require all freshwater planning
instruments prepared by a regional council to undergo the freshwater
planning process.
(2) A
freshwater planning instrument means—
(a) a proposed regional plan or regional policy statement for the purpose
of giving effect to any national policy statement for freshwater
management:
(b) a proposed regional plan or regional policy statement that relates to
freshwater (other than for the purpose described in paragraph (a)):
(c) a change or variation to a proposed regional plan or regional policy
statement if the change or variation—
(i) is for the purpose described in paragraph (1); or
(ii) otherwise relates to freshwater.
(3) A regional council must prepare a freshwater planning instrument in
accordance with this subpart and Part 4 of Schedule 1. However, if the
council is satisfied that only part of the instrument relates to freshwater,
the council must—
24 See [211] below.
(a) prepare that part in accordance with this subpart and Part 4 of
Schedule 1; and
(b) prepare the parts that do not relate to freshwater in accordance with
Part 1 of Schedule 1 or, if applicable, subpart 5 of this Part.
(4) A regional council must—
(a) publicly notify the freshwater planning instrument; and
(b) if the purpose of the freshwater planning instrument is to give effect
to the National Policy Statement for Freshwater Management 2020,
publicly notify the freshwater planning instrument by 31 December
2024; and
(c) no later than 6 months after it has publicly notified the freshwater
planning instrument, submit the documents required by clause 37(1)
of Schedule 1 (the
required documents) to the Chief Freshwater
Commissioner; and
(d) at least 20 working days before submitting the required documents,
provide to the Chief Freshwater Commissioner in writing—
(i) its notice of intention to submit those documents; and
(ii) the regional council and local tangata whenua nominations for
appointment to the freshwater hearings panel required by clause
59(1)(b) and (c) of Schedule 1.
…
(8) In subsection (2), a proposed regional plan does not include a proposed
regional coastal plan or a change or variation to that plan.
…
Integrated management, the fundamental concept of Te Mana o te Wai and ki uta
ki tai
[28] The way the ORC gave effect to integrated management, Te Mana o te Wai and
ki uta ki tai was integral to their decision to treat the whole of the proposed regional
statement as a freshwater planning instrument.
[29] A regional council’s functions under s 30(1)(a) of the RMA include the
establishment, implementation and review of objectives, policies and methods to
achieve integrated management of the natural and physical resources of the region.
[30] The purpose of a regional policy statement includes achieving integration
across policies so that, for example, policy or decisions on water issues should be made
in conjunction with policy on land matters that affect water or links that might need to
be made to the policy on natural hazards.25
[31] The fundamental concept of Te Mana o te Wai is described in the National
Freshwater Policy as follows:
1.3 Fundamental concept – Te Mana o te Wai
Concept
(1) Te Mana o te Wai is a concept that refers to the fundamental importance
of water and recognises that protecting the health of freshwater protects
the health and well-being of the wider environment. It protects the mauri
of the wai. Te Mana o te Wai is about restoring and preserving the balance
between the water, the wider environment, and the community.
(2) Te Mana o te Wai is relevant to all freshwater management and not just
to the specific aspects of freshwater management referred to in this
National Policy Statement.
[32] Subpart 1 of pt 3 of the National Freshwater Policy sets out approaches to
implementing the National Freshwater Policy.
[33] In that regard, every regional council must engage with communities and
tangata whenua to determine how Te Mana o te Wai applies to water bodies and
freshwater ecosystems in the region.26 To implement and give effect to Te Mana o te
Wai, regional councils must also adopt an integrated approach, ki uta ki tai, to the
management of freshwater.27
[34] Clause 3.5 of the National Freshwater Policy states:
3.5 Integrated management
(1) Adopting an integrated approach, ki uta ki tai, as required by Te Mana o
te Wai, requires that local authorities must:
(a) recognise the interconnectedness of the whole environment, from
the mountains and lakes, down the rivers to hāpua (lagoons), wahapū
(estuaries) and to the sea; and
25 As discussed in Derek Nolan
Environmental and Resource Management Law, (7th ed, LexisNexis,
Wellington, 2020) at [2.5]; and as illustrated by the decision of the Environment Court in
Clutha
District Council v Otago Regional Council [2020] NZEnvC 194; upheld by the High Court in
Clutha District Council v Otago Regional Council [2022] NZHC 510.
26 National Freshwater Policy, cl 3.2(1).
27 Clause 3.2(2)(e).
(b) recognise interactions between freshwater, land, water bodies,
ecosystems, and receiving environments; and
(c) manage freshwater, and land use and development, in catchments in
an integrated and sustainable way to avoid, remedy, or mitigate
adverse effects, including cumulative effects, on the health and well-
being of water bodies, freshwater ecosystems, and receiving
environments; and
(d) encourage the co-ordination and sequencing of regional or urban
growth.
(2) Every regional council must make or change its regional policy statement
to the extent needed to provide for the integrated management of the
effects of:
(a) the use and development of land on freshwater; and
(b) the use and development of land and freshwater on receiving
environments.
(3) In order to give effect to this National Policy Statement, local authorities
that share jurisdiction over a catchment must co-operate in the integrated
management of the effects of land use and development on freshwater.
(4) Every territorial authority must include objectives, policies, and methods
in its district plan to promote positive effects, and avoid, remedy, or
mitigate adverse effects (including cumulative effects), or urban
development on the health and well-being of water bodies, freshwater
ecosystems, and receiving environments.
Submissions in support of the whole of the proposed regional statement being a
freshwater planning instrument.
Otago Regional Council
[35] Mr Logan for the ORC summarised the ORC’s position as follows:
The [proposed regional statement] is, in its entirety, a freshwater planning
instrument. That statement seems counterintuitive. A regional policy
statement must cover many subjects. But when [the proposed regional
statement] is carefully considered, freshwater is woven into its fabric. There
is no severable part which neither gives effect to the [National Freshwater
Policy] nor relates to freshwater in some other way.
[36] The ORC was advised that two issues arose for it to consider in deciding
whether it was satisfied the proposed regional statement (as a whole or in part) could
be a freshwater planning instrument:
First, does the proposed regional statement give effect to any [National
Freshwater Policy]; and secondly, does the proposed regional statement relate
to freshwater?
[37] The ORC was advised that significant parts of the proposed regional statement:
… are clearly able to be classified as a freshwater planning instrument, either
because they are designed to give effect to a national policy statement for
freshwater, or because they are a matter that relates to freshwater. For other
parts it is less straightforward.
[38] The ORC was advised the proposed regional statement as a whole should be
considered a freshwater planning instrument to recognise the fundamental philosophy
of the RMA of integrated management and the concept of ki uta ki tai. The integrated
management chapter of the proposed regional statement was drafted so conflicts
between demands for resources could be resolved with an interconnected approach.
[39] The report to the ORC purported to summarise the consequences of not
recognising the proposed regional statement in its entirety as a freshwater planning
instrument. That summary suggested the overall integrity of the statement would
likely be undermined if there were two parallel hearing processes with differently
constituted hearing panels. Having two panels would result in delays and would not
achieve the best environmental outcome for Otago. The authors of the report
considered the proposed plan should be managed post-notification as a single
integrated planning instrument.
[40] In essence, the recommendation to the ORC was that the whole of the proposed
regional statement should be treated as a freshwater planning instrument because this
would be conducive to managing natural and physical resources in an integrated way;
it would recognise that freshwater, in rivers, underground, in the air and in the ocean,
is connected and what occurs in the headwaters and on land will have an impact in the
ocean. The report stated that “[t]he integrated management of the natural and physical
resources was at the heart of the planning approach to resource management in Otago
as expressed in the [proposed regional statement]”.
[41] In its public notification of the proposed statement, the ORC said the proposed
regional statement:
… is considered to meet the requirements of Section 80A(2)(a) and 80A(2)(b)
of the Resource Management Act 1991 because the Chapters of the [proposed
regional statement] are either giving effect to any national policy for
freshwater management or relate to freshwater.
[42] The notice also stated that the purpose of the RMA of promoting the
sustainable management of natural and physical resources could only be achieved
through an integrated approach to the task of managing those resources. The proposed
regional statement had been prepared to achieve that outcome. To not have it
considered a freshwater planning instrument would be to defeat that purpose.
[43] The ORC submitted:
(a) A freshwater planning instrument includes a planning document which
gives effect to the National Freshwater Policy including the fundamental
concept of Te Mana o te Wai. The sole objective of the National
Freshwater Policy is “to ensure that natural and physical resources are
managed in a way that gives effect to those priorities”.28 “Natural and
physical resources” is defined in s 2 of the RMA as including “land, water,
air, soil, minerals, and energy, all forms of plants and animals (whether
native to New Zealand or introduced), and all structures”.
(b) Clause 3.5 of the National Freshwater Policy required the ORC to manage
freshwater in an integrated way.29
(c) Accordingly, the threshold for the proposed regional statement to qualify
as a freshwater planning instrument could be met if the whole of it was for
the purpose of giving effect to the National Freshwater Policy. It does so
because of the way it achieves integrated management and gives effect to
ki uta ki tai and Te Mana o te Wai.
(d) “To give effect to”, as referred to in s 80A(2), means to implement.30
28 National Freshwater Policy, objective 2.1.
29 See [34] above.
30 With reference to
Environmental Defence Society Inc v The New Zealand King Salmon Co Ltd
[2014] 1 NZLR 593, [2014] NZSC 38 at [77].
(e) Section 80A(2)(a) and (b) contemplate that the whole of a proposed
regional plan or policy statement may be a freshwater planning instrument.
The only way Parliament could have contemplated such an outcome was
through understanding that this could be appropriate, adopting the
integrated management approach to planning.
(f) The second threshold for the proposed regional statement to be treated as
a freshwater planning instrument is if it “relates to freshwater” as stated in
s 80A(2)(b). The words “relates to” are not qualified. Reading in a
qualifier is not permissible. The words bear their natural and ordinary
meaning. A connection to freshwater is sufficient.31
(g) In response to submissions from Port Otago that the coastal environment
chapter was not capable of relating to freshwater, the ORC submitted it
was. The National Freshwater Policy states:32
This National Policy Statement applies to all freshwater (including
groundwater) and, to the extent they are affected by freshwater, to
receiving environments (which may include estuaries and the wider
coastal marine area).
(h) The ORC submitted coastal waters are a receiving environment for
freshwater and for the contaminants carried by freshwater. The ORC also
submitted the chapter both implements the National Freshwater Policy and
is related to freshwater because of the need for integrated management and
to give effect to ki uta ki tai.
(i) If links could be made between the freshwater chapter of the proposed
regional statement and other specific resource management chapters,
namely, air, management of infrastructure and transport resources, and
parts of historical and cultural values, natural features and landscapes, and
urban form and development, then those chapters relate to freshwater.
(j) Section 80A(3) simply recognises there may be freshwater planning
instruments that only partially relate to freshwater.
31 With reference to the definition in the
Oxford Learner’s Dictionary: “relate” Oxford Learner’s
Dictionary <www.oxfordlearnersdictionaries.com>.
32 National Freshwater Policy, cl 1.5.
[44] The ORC acknowledged that its decision as to whether the proposed regional
statement or parts of it were a freshwater planning instrument was not conclusive. The
correctness of its decision is a question of law to be determined by applying s 80A,
properly construed. It thus said a detailed consideration of the regional planning
statement was required to see whether there was some distinct part which does not
give effect to the National Freshwater Policy or which does not relate to freshwater.
[45] The ORC then addressed in detail the various chapters in the proposed regional
statement. The proposed regional statement separated into various chapters with
chapters on air, coastal environment including a section on the coastal marine area,
geothermal, and land and freshwater. The ORC said this structure was required by the
National Planning Standards 2019 as required by ss 61(1)(da) and 62(3) of the RMA.
It submitted adherence with the standards tended to create the appearance of subject
matter silos with seemingly discrete treatment of individual topics. This superficially
concealed the way in which freshwater was integrated into all parts of the proposed
regional statement.
[46] The ORC drew attention to specific references to freshwater in those various
chapters but also other statements that, it submitted, were connected to freshwater
which meant they should be regarded as giving effect to the National Freshwater
Policy or as being related to freshwater. Mr Logan also acknowledged there were parts
that did not refer to freshwater. For instance, he noted there were many definitions in
the definition section that do not relate to freshwater, but some do.
[47] As an example of a provision related to freshwater, the ORC referred to the
proposed regional statement identifying one of the issues for the region as being:
Poorly managed urban and residential growth affects productive land,
treasured natural assets, infrastructure and community well-being. Demand
for the supply of water, adverse effects on waterways and disposal of
contaminants to water are described as potential adverse effects.
[48] As another example, it discussed the chapter on air. The ORC submitted water
means water in all its physical forms.33 This definition encompasses water vapour.
33 RMA, s 2.
Water vapour is a contaminant when discharged to air. The discharge of contaminants
to air is regulated by the RMA. It said discharges to air can have adverse effects on
receiving environments, including freshwater, for example through spray drift. The
regional statement stipulates for controls to manage these effects so provisions in this
chapter contribute to implementing the National Freshwater Policy and relate to
freshwater.
[49] As to the coastal environment, the ORC said freshwater does relate to the
coastal environment because the coastal environment extends landward of the coastal
marine area and includes freshwater bodies, rivers, lakes, wetlands, aquifers and
springs. The proposed regional policy describes how coastal waters are a receiving
environment for freshwater gravel, sediment and other contaminants from terrestrial
activities.
[50] In the chapter as to transport, the ORC said the first objective is an integrated
air, land and sea transport network that is effective, efficient and safe, connects
communities and activities, and is resilient to natural hazards. It submitted this chapter
triggers the application of infrastructure provisions in the proposed regional statement
which implement the National Freshwater Policy because there are freshwater hazards
that threaten the resilience of the transport systems and public transport can include a
service for the carriage of passengers by vehicle, rail or ferry.
[51] In responding to submissions from other parties, the ORC submitted the words
“relates to freshwater” embraces provisions that relate to freshwater “but are focused
on outcomes broader than just freshwater”. It submitted that outcome is not surprising.
Freshwater underpins life. To promote sustainable management and achieve
integrated management of natural and physical resources, it is necessary to make, at
every step, decisions which relate to freshwater.
[52] Mr Logan said, if there had to be a qualification on the phrase “relates to”, the
most preferable qualification would require a cause or connection to freshwater in the
manner submitted in accordance with the submissions made for the Waitaki District
and Dunedin City Councils.
Ngā Rūnanga
[53] Submissions were made on behalf of Te Rūnanga o Moeraki, Kāti Huirapa
Rūnaka ki Puketeraki, Te Rūnanga o Ōtākou and Hokonui Rūnanga, and Te Rūnanga
o Ngāi Tahu (collectively Ngā Rūnanga). Te Rūnanga o Ngāi Tahu is the statutorily
recognised representative tribal body of Ngāi Tahu Whānui. The others are four of the
18 Papatipu Rūnanga of Ngāi Tahu Whānui that are statutorily recognised under the
Te Rūnanga o Ngāi Tahu Act 1996 and are mana whenua within the Otago region.
[54] Ngā Rūnanga supported the ORC’s position. Ngā Rūnanga summarised their
position in these proceedings as being to ensure appropriate provision is made for the
recognition of the relationship of Ngāi Tahu Whānui with their ancestral lands, waters
and other taonga in the process of the hearing and decision-making on the proposed
regional statement. They said this is to be achieved by way of an integrated approach
to management of the Otago regions resources under the RMA.
[55] Ngā Rūnanga made the following submissions:
(a) The proposed regional statement met the definition of a freshwater
planning instrument because it is a regional planning statement for the
purpose of giving effect to a national policy statement for freshwater
management. Correctly interpreted, the words “relates to freshwater” in s
80A(3) could encompass all parts of freshwater planning instruments that
are for the purpose of giving effect to the National Freshwater Policy.
(b) The ORC correctly interpreted s 80A(3) when it came to the view that the
entirety of the proposed regional statement relates to freshwater in the
context of:
(i) the history of the reviews that had led to the proposed regional
statement;
(ii) the directions in the National Freshwater Policy; and
(iii) the ORC’s duty to take an integrated planning approach under the
RMA.
(c) This interpretation would best give effect to Parliament’s intention as it
would allow all parts of regional policy statements and plans that are for
the purpose of giving effect to the National Freshwater Policy to be
included in the streamlined freshwater planning process, so as to enable
the relevant councils to give effect to the National Freshwater Policy fully
and quickly.
(d) This interpretation would also give effect to provisions of the RMA that
provide for the integrated management of the natural and physical
resources of the region. The National Freshwater Policy recognises the
importance of integrated management through Te Mana o te Wai and ki
uta ki tai.
(e) The Environment Committee report on the Resource Management
Amendment Bill 2019 made it clear that the intent of the freshwater
planning process was to assist regional and unitary councils to meet the
deadline for implementing the requirements of the National Freshwater
Policy. The process was intended to achieve this purpose through
implementing a streamlined one-step process with limited rights of appeal.
(f) The implication of Forest and Bird’s interpretation of s 80A(3) would be
that decision-making on the proposed regional statement would become
fragmented, making it more difficult for the ORC to achieve the freshwater
outcomes required by the National Freshwater Policy.
(g) The freshwater hearings panel includes two persons nominated by the
relevant regional council and one person nominated by local tangata
whenua. The panel would have the ability and expertise to ensure there is
a proper hearing of all submissions as to the proposed regional statement
under the freshwater planning process, particularly because expert
evidence and reports could be part of the process.
(h) There was an expressed intention for the proposed regional statement to
give effect to the National Freshwater Policy in the council officer’s report
of 6 June 2021 and s 32 report. These set out why the ORC considered
the proposed regional statement gives effect to the National Freshwater
Policy. Ngā Rūnanga acknowledged the proposed regional statement
gives effect to other national policy statements but submitted this did not
prevent the proposed regional statement from falling within the definition
of a freshwater planning instrument in s 80A(2)(a) of the RMA.
(i) The use of the word “satisfied” in s 80A(3) conferred a merits decision on
the relevant council. It was for the ORC to review the freshwater planning
instrument and satisfy itself whether only parts of it relate to freshwater or
whether the instrument relates to freshwater in its entirety. Once it was
established the ORC had carried out an assessment of the proposed
regional statement and come to the view it was satisfied the proposed
regional statement relates to freshwater in its entirety, the merits of that
decision could not be the subject of declaration proceedings.
[56] Ngā Rūnanga’s position was supported by an affidavit from Edward Weller
Ellison, Upoko of Te Rūnanga o Ōtākou.
[57] In his affidavit Mr Ellison spoke with obvious authority but also as someone
whose identity and whakapapa are closely tied to the Otago region, ki uta ki tai, from
the mountains to the sea. He spoke of the Kāi Tahu understanding of the central
importance of wai Māori (freshwater) and its interconnectedness to the other parts to
te taiao (the natural world), and the importance of mana whenua involvement in
decision making about wai māori and te taiao more broadly.
[58] Mr Ellison said Kāi Tahu ki Otago has consistently advocated for a more
holistic and integrated approach to planning that recognises the connections between
land, freshwater, coastal waters and indigenous biodiversity, and for better recognition
of the relationship of Kāi Tahu o te taiao. He spoke to the importance of rakatirataka
(having the mana/authority to give effect to Kāi Tahu culture in the management of
the natural world) and kaitiakitaka (the right and responsibility to care for the
environment passed through generations) to Te Mana o te Wai for Kāi Tahu.
[59] Mr Ellison said the narrow approach that had been taken to freshwater
management in Otago had led to the profound loss of mahika kai resources due to the
drainage of wetlands, and the degrading of the quality of wetlands, rivers, estuaries,
harbours and coastal demands.
[60] Sandra Jean McIntyre is an experienced planner. She had a leading role in
providing input on behalf of Kāi Tahu ki Otago to the proposed regional statement. In
her affidavit, she agreed with the ORC that the proposed regional statement as a whole
gives effect to the National Freshwater Policy or relates to freshwater planning. She
considered the proposed regional statement had to be an “integrated package” to be
effective. She considered there would be a real risk it would not be an “integrated
package” if there was a segregated decision-making process, where different parts of
the proposed regional statement would be considered through different processes and
at different times.
[61] Ms McIntyre considered “there are clear connections to freshwater planning
throughout the [proposed regional statement]”. She had not undertaken a
comprehensive review of all provisions in the proposed regional statement but gave
examples of connections to freshwater planning across the proposed regional
statement.
[62] Ngā Rūnanga thus supported the ORC’s application for declarations that the
ORC had decided correctly that the whole of the proposed regional statement was a
freshwater planning instrument.
Canterbury Regional Council
[63] In its pleading, the Canterbury Regional Council (CRC) asserted that whether
the proposed regional statement as a whole is a freshwater planning instrument was a
question of law. In submissions, it said the CRC did not take a position as to whether
the whole of the proposed regional statement was a freshwater planning instrument.
[64] Nevertheless, in an affidavit for the CRC, its regional planning manager Mr
Parish said that the CRC was reviewing its current regional policy statement, as the
RMA required of it every 10 years.34 He said the CRC’s current policy statement
34 RMA, s 79.
provided the strategic framework for all resource management issues in the region, it
was anticipated much of the document would “relate to freshwater” such that it should
proceed through the freshwater planning process set out in the RMA. The CRC
anticipated there may be parts of their policy statement and regulatory framework as
a whole that would not relate to freshwater, but it was currently unclear where the line
should be drawn to determine which provisions relate to freshwater “given the
integrated management philosophy underpinning the RMA and the CRC’s approach
to planning processes”.
[65] Mr Parish said that, in Canterbury and Otago, the integrated management
policy has more recently been expressed through the concept of ki uta ki tai.
[66] Mr Parish stated the concept of Te Mana o te Wai, as referred to in the National
Freshwater Policy, demonstrates that a broad range of activities can be considered to
relate to freshwater. He said that required local authorities to recognise the
interconnectedness of the whole environment − from the mountains and lakes, down
the rivers to hapua lagoons (lagoons or hapū estuaries) and to the sea.
[67] Mr Parish said planning consistent with ki uta ki tai required the CRC to ensure
the effects of activities are managed holistically and to recognise the
interconnectedness of the environment as a whole. This meant some activities
(although they may not seem, on their face, to relate to freshwater) do have impacts
on freshwater. As such, he anticipated it would be difficult to determine specifically
which parts of a document such as a regional policy statement “relate” to freshwater
within the terms of the RMA.
[68] Mr Parish said, accordingly, CRC sought further clarity as to how to determine
whether a document (or part of a document) “relates” to freshwater such that it can be
considered a freshwater planning instrument.
[69] The CRC also sought guidance as to whether determination as to which parts
of a planning instrument do not relate to freshwater should be on a chapter-by-chapter
basis or on a provision-by-provision basis.
[70] Through the submissions of Mr Maw, the CRC said it had “some reservations
as to how a regional policy statement could be effectively split between two planning
processes”. It said the key issues to this included:
(a) how submissions as to further integration between provisions are to be
considered if relevant provisions are required to be considered under two
separate planning processes;
(b) the extent of the Council’s discretion in terms of satisfying itself that the
planning instrument “relates to freshwater”; and
(c) the risks of splitting up provisions to proceed through separate planning
processes, both as to considering objectives separately from other
objectives and considering policies separately from their associated
objectives.
[71] The CRC submitted:
(a) The definition of a freshwater planning instrument included either:
(i) a planning document for the purpose of giving effect to any national
freshwater statement; or
(ii) a planning document that relates to freshwater (other than for the
purpose of giving effect to a national policy statement for freshwater
management).
(b) “Relates to freshwater” means something different than giving effect to
the National Freshwater Policy, but there is no guidance in the legislation
itself to determine how a council is supposed to decide what “relates” to
freshwater.
(c) In order to give effect to the concept of integrated management (or ki uta
ki tai) and the fundamental principle of Te Mana o te Wai, councils would
have to consider a range of matters:
… that may not be traditionally thought of (especially in a Western
sense) as relating to freshwater such that they are required to give
effect to the [National Freshwater Policy]. This can include aspects
such as the co-ordination and sequencing of regional or urban
growth.
(d) This would make it even more difficult to determine which provisions of
a planning document are for the purpose of giving effect to the National
Freshwater Policy or which otherwise relate to freshwater, or are unrelated
such that they should proceed through the usual pt 1 of sch 1 process.
(e) Section 80A(3) applies only if the regional council is satisfied that only
part of the instrument relates to freshwater. This ultimately leaves a
relatively broad discretion in the council’s hands to determine which parts
of the plan give effect to the National Freshwater Policy or otherwise relate
to freshwater, such that they should proceed through the freshwater
planning process.
(f) There are ways risks as to integrated management could be reduced if
different parts of the instrument go through different processes. For
instance, councils could nominate people to be members of both
freshwater hearings panels and panels dealing with other matters. It
nevertheless submitted there is still a need for:
… some level of clarity regarding which provisions were to proceed
through which process in order to determine whether an appeal on the
merits of the decision is available or not.
[72] The CRC suggested several principles should be recognised in determining the
approach councils should take in deciding whether a document or parts of a document
are a freshwater planning instrument.
[73] The first suggested principle was that the Court should err on the side of having
more parts of the proposed regional statement go through the freshwater planning
process rather than less, to allow submissions to be considered through the same
hearings process. Another was that, in order to achieve integrated management of the
natural and physical resources of the region, the provisions with relationships to each
other should proceed through the same planning process as far as practicable and,
“where provisions relate to freshwater but also other matters, they should proceed
through the freshwater planning process”.
Submissions of parties who argued the ORC’s decision that the proposed regional
statement, as a whole, was a freshwater planning instrument was not open to it
on a correct interpretation of s 80A of the RMA
[74] My later analysis sets out how s 80A is to be interpreted and applied.35 In
considering its purpose, I refer in detail to relevant aspects of the legislative
background as were brought to my attention in submissions for various parties. In the
interests of economy, I do not repeat them in detail here.
The Minister for the Environment
[75] The Minister for the Environment, through counsel, submitted:
(a) The determination required under s 80A was not what is excluded from
the freshwater planning process but what had to be included. The starting
point is the normal pt 1 of sch 1 process with the full submitter
participatory rights.
(b) Further, just as it is mandatory for a freshwater planning instrument to go
through the freshwater planning process,36 it is also mandatory that those
parts of a plan or policy statement that are not related to freshwater do
not.37 As the requirements of s 80A(3)(a) and (b) are mandatory, the test
must be rigorously applied.
(c) The RMA recognises that everything in the natural world is, to some
extent, connected to everything else. Recognising the need for an
integrated approach, it was best in draft plans and policy statements to
properly recognise and plan for interdependencies, co-dependencies and
interconnectedness. Nevertheless, it is possible to divide topics
administratively for hearing, as most councils do, so splitting some topics
to go down a different track would be similar.
35 See [117]-[147] below.
36 Section 80A(3).
37 Section 80A(3)(b).
[76] Counsel referred to the Minister’s statement in introducing the Resource
Management Amendment Bill 2019 (the Amendment Bill) in September 2019 and
other aspects of the legislation process.38
[77] Counsel referred to the Departmental Report on the Amendment Bill (the
Report) prepared by the Ministry for the Environment of March 2020. The Report
referred to submissions that had been made to the Environment Committee in the
context of integrated management that advocated the fast track should apply to all
planning documents. The submissions were rejected on the basis that such a change
would interfere with the expedited process for freshwater.
Forest and Bird
[78] Forest and Bird submitted:
(a) The scope of what might be a freshwater planning instrument is
determined by s 80A(3). Section 80A(3) directs that provisions that do
not relate to freshwater cannot come within the definition of a freshwater
planning instrument and cannot be subject to the freshwater planning
process.
(b) Accordingly, provisions that give effect to broad directions in the National
Freshwater Policy such as integrated management cannot, by reason only
of this, be subject to the freshwater planning process. They must also
relate to freshwater. Put another way, provisions unrelated to freshwater
cannot be subject to the freshwater planning process simply because they
need to be integrated with freshwater management matters.
(c) This interpretation of s 80A is consistent with the general scheme and
purpose of the RMA and the manner in which it, in a number of instances,
separates freshwater from other natural and physical resources.
(d) The intended distinction between freshwater and other resources was put
beyond doubt by the legislative history of the Amendment Act. The
38 See [130] below.
intention behind the freshwater planning process was to introduce an
expedited process to address freshwater quality decline.
(e) Given the stringent timeframes required by the freshwater planning
process, freshwater hearings panels should not be burdened with
additional matters that are unrelated or only remotely related to freshwater.
Those are more appropriately dealt with through the standard process in
pt 1 of sch 1. The ORC’s approach would frustrate the intent behind the
freshwater planning process of putting in place a streamlined process
intended to expedite protection and restoration of freshwater.
(f) The scope of what “relates to freshwater” must be capable of pragmatic
assessment that is consistent with the RMA’s careful and deliberate
separation of decision-making procedures for natural and physical
resources.
(g) Where in a chapter there was only a limited reference to a freshwater issue,
adopting a pragmatic approach, the better course was to exclude the whole
of that chapter as not relating to freshwater.
(h) There was guidance in s 30 of the RMA as to what parts of a policy
statement would relate to freshwater with the reference to functions that
could be seen as clearly relating to freshwater, namely:
(i) controlling the use of land for the purpose of the maintenance and
enhancement of the quality or quantity of water in water bodies in s
30(c)(ii) and (iii); and
(ii) in relation to any bed of a water body, the control of planting any plant
in, on or under that land for the purpose of maintaining and enhancing
the quality and quantity of water in that water body in s 30(1)(g)(ii)
and (iii).
(i) The hearings panel must have two freshwater commissioners who have
expertise in relation to freshwater quality, quantity and ecology, Te Mana
o te Wai and water use in the local community. There is no express
requirement for panel members to have expertise in matters such as air
quality, marine ecology or other aspects of the environment. This
demonstrates the freshwater planning process was not tailored for wider
resource management matters. Where provisions require expertise outside
the scope of the panel members, such as the ecosystems and indigenous
biodiversity chapter, those provisions should go through the standard
process in pt 1 of sch 1.
(j) The land and freshwater domain chapter should be the only freshwater
planning instrument. There may be particular matters in other parts of the
proposed regional statement that relate to freshwater, but it would be
inappropriate to include every provision in that particular domain or topic
chapter as being related to freshwater. Adopting a practical approach, such
isolated matters should not be subject to the freshwater planning process.
(k) Section 80A is concerned with freshwater. Freshwater is defined in s 2 as
meaning “all water except coastal water and geothermal water”. Coastal
water is defined in s 2 as:
… seawater within the outer limits of the territorial sea and includes—
(a) seawater with a substantial freshwater component; and
(b) seawater in estuaries, fiords, inlets, harbours or embayments[.]
(l) The RMA makes clear distinctions between areas where freshwater is
present and areas where coastal water is present. The use of the term
“freshwater” in s 80A(3) indicates a deliberate choice to confine the
freshwater planning process to freshwater issues, rather than collateral
issues relating more broadly to other resources.
(m) Only one provision in the coastal environment domain chapter refers to
freshwater. The policy CE-P4(1)(c) requires the identification of “areas
and values of high and outstanding natural character which may include
matters such as: … natural landforms such as headlands, peninsulas, cliffs,
dunes,
wetlands, estuaries, reefs,
freshwater springs and
surf breaks”.39
39 Emphasis in original.
They submitted, while there is a reference to freshwater, it relates to the
natural character of the coastal environment and cannot easily be tied back
to freshwater quality, quantity or ecology.
(n) As examples of provisions in the coastal environment that are
spatially
distinct from freshwater and water bodies, they referred to statements as
to protection of nationally significant surf breaks, maintaining or
enhancing public access to and along the coastal marine area, provisions
as to activities that only occur in the coastal marine area, the reference to
aquaculture, which does not relate to freshwater, and to reclamation which,
by its very nature, can only occur in the coastal marine area.
(o) Several parts of the proposed regional statement did not claim to be related
to freshwater. The proposed regional statement contains a natural
landscape and features topic chapter which says it implements ss 6(b) and
7 of the RMA, without reference to the National Freshwater Policy or
integrated management.
The policies in this chapter are designed to require outstanding and
highly valued natural features and landscapes to be identified using
regionally consistent attributes, then managing activities to either
protect outstanding natural features and landscapes in accordance
with section 6(b) of the RMA 1991 or
maintain highly valued natural
features or landscapes in accordance with section 7 of the RMA 1991.
(emphasis in original)
This policy relates to landscape without any freshwater function.
(p) It is not tenable for the urban form and development chapter to “relate to”
freshwater when it makes no substantive reference to it. The proposed
regional statement states:
The policies in this chapter are designed to facilitate the provision of
sufficient housing and business capacity and ensure all of the region’s
urban areas demonstrate the features of
well-functioning urban
environments and meet the needs of current and future communities.
(emphasis in original)
[79] Forest and Bird acknowledged that, in the proposed regional statement, in a
separate chapter and in various other chapters, there is reference to mana whenua.
Forest and Bird said it deferred to mana whenua on those sections.
Oceana Gold
[80] Oceana Gold owns and operates New Zealand’s largest gold and silver mine.
The company holds more than 220 resource consents, mostly granted by the ORC.
The mine is located in east Otago around Macraes township. It is within a special-
purpose zone in the operative Waitaki District Plan which recognises the significance
of the mine to the Waitaki District. It operates in a negative water balance
environment, which means that Oceana Gold imports more water onto the site for
processing purposes than is discharged into the receiving environment.
[81] As with Forest and Bird, Oceana Gold submitted the key provision driving the
appropriate classification of the proposed regional statement is s 80A(3) and what
“relates to freshwater” means in that provision. They submitted, if the proposed
regional statement comprises parts which relate to freshwater and parts which do not
relate to freshwater, it is only those parts relating to freshwater that follow the
freshwater planning process. The parts that do not relate to freshwater must follow
the standard process in pt 1 of sch 1. They submitted that “relates to freshwater”
requires there be something more than a connection with freshwater.
[82] Oceana Gold submitted:
(a) The proposed regional statement was not for the purpose of giving effect
to any national policy statement for freshwater management because:
(i) the proposed regional statement was prepared for the purpose of
complying with the Minister for the Environment’s directions of 18
November 2019, not to give effect to the National Freshwater Policy;
(ii) the proposed regional statement does not mention the National
Freshwater Policy or any other national policy statement by name, and
neither “water” nor “freshwater” appear in its purpose; and
(iii) there had been no active consideration given to the council’s role of
“satisfying” itself as to the subject matter of the instrument and what
parts could be held to relate to freshwater in the advice given to the
ORC.
(b) The legislation contemplated there could be parts of a freshwater planning
instrument that “relate to freshwater” and parts that do not. They accepted
that all resources are interconnected and must be managed in an integrated
way. However, it does not follow that everything “relates to” freshwater
for the purposes of s 80A. That would be inconsistent with the Ministry
for the Environment’s technical guidance from September 2020 and the
purpose of s 80A.40
(c) If the interconnectedness of resources and need for integrated management
mean that “relates to freshwater” is synonymous with “some connection
to freshwater”, then s 80A(3) would not have any practical application.
(d) For parts of the proposed regional statement to be subject to the freshwater
planning process, they must “relate to freshwater” and that meant they had
to be provisions which implement a regional council function regarding
freshwater quality, quantity or ecology.
(e) The legislation requires a regional statement to set out and have regard to
the range of matters referred to in the RMA. Because of this, the proposed
regional statement is concerned with much more than just the management
of freshwater resources.
(f) If the Court were to make a declaration that the proposed regional
statement in its entirety relates to freshwater and so is a freshwater
planning instrument, the consequence would be that all regional policy
statements would be freshwater planning instruments and thus be subject
to the freshwater planning process. It would further mean that, if any
change or variation to the proposed regional statement was required to
give effect to any new or changed national instruments would “be related
40
A new Freshwater Planning Process: Technical guidance for councils (Ministry for the
Environment, September 2020).
to freshwater” and subject to the freshwater planning process. This would
be an absurd result and not what Parliament intended.
[83] Oceana Gold submitted the proposed regional statement contains provisions
that “at best have a tenuous connection with freshwater” and are instead directly
related to other important regional resource management issues such as urban
development, identification and protection of land for primary production, energy,
transportation, infrastructure, and the protection and maintenance of biodiversity.
[84] As to those matters, they submitted the freshwater planning process was poorly
suited to be the process for developing regional policy. The standard plan-making
process has the benefits of the availability of appeal rights and specialist judicial
oversight. They submitted that, with s 80A, Parliament decided the urgency of
achieving better freshwater management outweighed those benefits Oceana Gold
accordingly submitted the Court should be cautious in allowing s 80A to be utilised in
a way that would allow topics to be subject to the freshwater planning process in ways
Parliament had not clearly identified as being subject to that process.
[85] The Court had the assistance of an affidavit from Claire Hunter, a resource
management consultant. She helpfully summarised the legislative context in which
regional plans are prepared. There was also an affidavit from Alison Paul, Oceana
Gold’s general manager of corporate and legal affairs. Through their affidavits,
Oceana Gold highlighted matters in the proposed regional statement that had been of
concern to them and which they suggested were not related to freshwater issues. Those
concerns related to the lack of recognition of the significance of the mining and
extractive sectors and the lack of a policy recognising the locational constraints and
functional needs of mining because mining can only happen where minerals naturally
occur.
Port Otago Ltd
[86] Port Otago Ltd operates international ports at Port Chalmers and Dunedin.
[87] Port Otago submitted:
(a) Section 80A(3) is the driving consideration of what is a freshwater
planning instrument in terms of s 80A, so only the parts of the instrument
that relate to freshwater can be subject to the freshwater planning process.
(b) Consistent with the opinion of Ms van der Spek for the Waitaki District
Council, forcing all resource management issues into a process that was
intended for freshwater issues would not be an integrated approach nor
would it allow for appropriate consideration of all aspects of sustainable
management. Rather, it would cause all issues to be seen through the lens
of freshwater management and be dealt with only in that context.
(c) The proposed regional statement was not a freshwater planning instrument
in its entirety because it includes provisions relating to coastal water such
as the main domain “CE – Coastal environment” and policies relating to
seawater. Freshwater is defined in the RMA and in the proposed regional
statement to specifically exclude coastal water. Proposed regional coastal
plans are also excluded from the definition of freshwater planning
instruments by s 80A(8). The freshwater planning process is inappropriate
for an issue as complex as the application of the New Zealand Coastal
Policy Statement.
(d) The recommendation to the ORC that the whole of the proposed regional
statement could be considered a freshwater planning instrument had failed
to inform the ORC of the definition of “freshwater” and the exclusion of
seawater from consideration under the freshwater planning process.
(e) Because the ORC failed to identify those parts of the proposed regional
statement that were not related to freshwater, the process followed by ORC
in notifying the whole of the proposed regional statement as a freshwater
planning instrument was invalid.
Dunedin City Council and Waitaki District Council
[88] Mr Garbett appeared as counsel for the Dunedin City Council and Waitaki
District Council. He said those councils supported the submissions for Forest and Bird
in full, although the councils considered more chapters of the proposed regional
statement to substantially relate to freshwater.
[89] The Dunedin City Council’s opposition was supported by an affidavit from Dr
Anna Johnson, the city development manager. She identified that the Council’s key
concern with the proposed regional statement centres around how and whether it gave
effect to the National Policy Statement for Urban Development and adequately
provided for housing, and infrastructure to support housing in Dunedin. She said the
council’s submission to the ORC on the proposed regional statement “covered a broad
range of issues with a focus on topics related to growth and infrastructure, which are
distinct topics from freshwater or freshwater management”.
[90] Dr Johnson was concerned that, if the entirety of the proposed regional
statement went through the streamlined freshwater planning process, it would not be
a fair process and the regional statement would inadequately address issues relating to
urban development. She said:
Based on my previous experience with the 2015 [proposed regional
statement], the appeal process (and the opportunities it created for mediation
between the parties) was essential for creating a more workable [proposed
regional statement]. Those opportunities would not be afforded where appeals
are only allowed on points of law.
[91] The Waitaki District Council’s opposition was supported by an affidavit from
its executive officer, Victoria van der Spek. In her affidavit, she identified key issues
the Waitaki District Council had with the proposed regional statement that she said did
not directly relate to freshwater management. These issues related to concerns about
coastal erosion, the lack of recognition of carbon forestry as a significant resource
management issue in the Otago region with regard to its effects on pastoral farming,
the impact of such forestry on rural economies, loss of historically “productive land”,
negative impacts on local employment and agricultural services, reverse sensitivity
effects, issues with fire risk, wilding tree spread and issues with site rehabilitation. In
a response to the proposed regional statement, the Council had submitted there was
inadequate recognition of the Macraes mining operation and inadequate recognition
of certain social and civil buildings (including schools, churches, civil and public
buildings as historic heritage buildings).
[92] Mr Garbett accepted that the ORC had satisfied itself that the whole of the
proposed regional statement related to freshwater and thus was a freshwater planning
instrument. He submitted the ORC’s decision had to be available to it in terms of
either s 80A(2)(a) or (b). He submitted that the whole of the proposed regional
statement had to be for the purpose of giving effect to the National Freshwater Policy
or it had to entirely relate to freshwater. He submitted that only parts of the proposed
regional statement gave effect to the National Freshwater Policy and only parts relate
to freshwater.
[93] The Dunedin City Council and Waitaki District Council submitted the term
“relates to” should be to require “a cause or connection between”. They submitted
that, given the context in which s 80A was enacted and Parliament’s intention to
establish a streamlined planning process for freshwater instruments, the phrase
“relates to” was intended to apply to those instruments, or parts of them, that relate
directly to freshwater, and maintaining its quality and quantity.
[94] Mr Garbett was critical of the submission for the ORC that if freshwater is
mentioned in a chapter in the proposed regional statement then the whole of that
chapter should qualify as a freshwater instrument.
Central Otago District Council and Queenstown Lakes District Council
[95] The Central Otago District Council and the Queenstown Lakes District
Council’s (QLDC) positions were consistent with those of the Waitaki District Council
and Dunedin City Council.
[96] For Central Otago District Council and the QLDC, Ms Scott acknowledged
that parts of the proposed regional statement directly relate to freshwater.
Nevertheless, consistent with the submissions for Oceana Gold, Ms Scott submitted
that for the Court to find the National Freshwater Policy requires an integrated
approach to be taken so the entire proposed regional statement is a freshwater planning
instrument under s 80A(2)(a) would effectively render s 80A(2)(b) obsolete.
[97] These councils adopted Forest and Bird’s submissions on interpretation
principles and the primacy of s 80A(3) but emphasised that the interpretation of s
80A(3) is to be approached with two principles of interpretation in mind:
(a) the meaning of a statutory provision is to be ascertained from text in light
of purpose and context;41 and
(b) Parliament is presumed to legislate in a manner that produces a practical,
workable and sensible result.42
[98] These councils submitted it is overly simplistic to say, if there is any connection
with freshwater in a chapter regardless of proximity or centrality, then the whole
chapter or topic will relate to freshwater for the purposes of s 80A. This interpretation
ignores Parliament’s intention in s 80A(3) that parts of a proposed regional policy
statement that do not relate to freshwater are to go through the standard process in pt
1 of sch 1.
[99] The QLDC’s position was supported by an affidavit from its manager of
planning policy, Alyson Hutton. She said the QLDC’s interest in the case was that the
proposed regional statement addresses a broad range of matters which she and the
QLDC considered do not relate to freshwater. The QLDC opined that, to ensure good
planning outcomes, those provisions required examination through a broader resource
management lens rather than with a focus on freshwater issues. In that regard, for the
Central Otago District Council and the QLDC, the absence of merits-based appeals as
to non-freshwater issues was a further and significant concern.
[100] It was Ms Hutton’s opinion that a provision in the proposed regional statement
must “relate to freshwater in a more than tangential way” for it to be treated as part of
a freshwater planning instrument.
[101] Ms Hutton referred to the QLDC’s interest in the natural features and landscape
section of the proposed regional statement. This relates to the management of features
or landscapes identified as an outstanding natural feature or outstanding natural
41 Legislation Act 2019, s 10.
42
R v Salmond [1992] 3 NZLR 8 (CA) at 13, per Cooke P.
landscape. The QLDC was critical of the ORC’s submission that the chapter in the
proposed regional statement as to outstanding natural features and landscapes could
be treated as relating to freshwater because these features included certain areas of
freshwater, for example a river. The QLDC said that submission ignored the reality
that a significant number of such features have no relationship to freshwater
whatsoever.
[102] An affidavit was filed for the Central Otago District Council by its principal
policy planner, Ann Rodgers. Ms Rodgers identified that the majority of the District
Council’s areas of interest on the proposed regional statement focused on issues other
than freshwater management.
[103] An example she referred to was Central Otago experiencing some of the
coldest temperatures in the country during the winter months and the potential for the
timing of the phasing out of non-compliant wood burners to adversely affect the health
of communities who may not be able to replace their heating.
[104] Consistent with affidavit evidence from other planners, she expressed a
concern that, with the freshwater hearings panel’s emphasis on freshwater expertise,
there would be a risk that the final regional policy statement might continue to give
inadequate attention to the National Policy Statement on Urban Development and
issues related to growth. Having those matters go through the streamlined freshwater
planning process would not be a fair process for the District Council and would be
unlikely to deliver the quality of decision-making it expects on non-freshwater
matters. She noted the District Council’s appeal rights as to such matters would be
severely limited if that is how these issues are to be dealt with.
Rayonier Matariki Forest Ltd and Ernslaw One Ltd
[105] Rayonier Matariki Forests Ltd (Rayonier) is a forestry company owning or
managing over 70 forests located throughout New Zealand, including 7,780 ha of
predominantly pinus radiata in the Otago region. Ernslaw One Ltd (Ernslaw) is a
forestry company managing up to 130,000 ha throughout New Zealand. This includes
20,360 ha of pinus radiata and Douglas fir in the Otago region.
[106] Rayonier and Ernslaw asserted parts of the proposed regional statement,
including parts relating to “coastal water”, are not for the purpose of giving effect to
the National Freshwater Policy nor do they otherwise relate to freshwater.
[107] As to the interpretation of s 80A, Ms Gepp for Rayonier and Ernslaw
submitted:
(a) If Parliament intended regional plans to be freshwater planning
instruments in their entirety, there would have been no need to introduce
and define “freshwater planning instruments”. Parliament could have
simply said the freshwater planning process would apply to regional policy
statements and regional plans.
(b) The expertise of the commissioners making up the freshwater hearings
panel would be focused on “freshwater quality, quantity and ecology” with
broader expertise on judicial process, the RMA, and tikanga Māori and
mātauranga Māori.43 The ability for additional members to be appointed
to extend the expertise would not be enough to ensure the panel is
equipped to deal with regional plan provisions that do not squarely relate
to “freshwater”. The composition of the hearings panel is consistent with
Parliament intending that the emphasis in the freshwater planning process
would be on freshwater considerations.
(c) Parts of the proposed regional statement that are for the purpose of giving
effect to the National Freshwater Policy will qualify as a freshwater
planning instrument but only insofar as they give effect to the freshwater
focus of the National Freshwater Policy. In applying s 80A(2), there had
to be a “causal connection” in both the National Freshwater Policy and the
proposed regional statement to freshwater. She submitted, if the
connection was only through some general interconnectedness of the
environment, it would be too “remote” or “obscure” to meet the threshold
for treatment as a freshwater planning instrument as provided for in s
80A(2).
43 RMA, sch 1 cls 59(6) and 64.
(d) The freshwater planning process strained the concept of integrated
management because it provided for separate processes to develop parts
of the plan that were to give effect to the National Freshwater Policy and
which related to freshwater from those parts which did not do so. This
was the consequence of s 80A.
(e) The establishment of the freshwater planning process to deal with
freshwater issues did not have to be completely at odds with integrated
management. Having different planning processes to deal with different
parts of a regional policy statement does not prevent integrated
management of natural and physical resources. Regional coastal plans and
regional plans can and do address other regional council functions
separately.44 It will be mandatory for the freshwater hearings panel to “be
sure” that its recommendations comply with the statutory requirements
that apply to the regional council’s preparation of the plan.45
(f) In terms of legislative requirements, s 80A is specific and later in time than
the sections requiring integrated management, so s 80A should prevail
where the provisions conflict.
(g) Treating the whole proposed regional statement as a freshwater planning
instrument would curtail appeal rights in respect of all resource
management matters under the proposed regional statement. The
legislative history, as detailed later in this judgment, shows that Parliament
intended the streamlined process with limited appeal rights would have
limited reach.
(h) The implementation of other RMA instruments, including the National
Environmental Standards for Plantation Forestry would be undermined if
the entire proposed regional statement is a freshwater planning instrument.
Those standards are intended to provide a set of nationally consistent rules
to manage the environmental effects of plantation forestry. There would
be significant consequences for the efficiency and effectiveness of forestry
44 Section 64.
45 Sch 1 cl 50(d).
operations if that is undermined through the freshwater hearings panel
recommending rules more stringent than would be permitted by the
National Environmental Standards for Plantation Forestry.
(i) Where the phrase “relates to” is intended to capture multiple
environmental domains elsewhere in the RMA, this is expressly stated.
For example, per s 86B(3)(a), a rule in a proposed plan has immediate
legal effect if it “protects or relates to water, air, or soil (for soil
conservation)”.
(j) The requirement for a regional council to be satisfied as to whether a
regional policy statement is or is not a freshwater planning instrument does
not mean that a council’s decision as to this is immune from challenge. It
must make its decision by applying the correct legal test. Here, the ORC
had applied the incorrect legal test and was in error in classifying the whole
of the proposed regional statement as a freshwater planning instrument.
The interpretation of s 80A of the RMA
Legal principles
[108] The meaning of legislation must be ascertained from its text and in the light of
its purpose and its context.46
[109] In
Commerce Commission v Fonterra Co-operative Group Ltd, Tipping J for
the Supreme Court said:47
[22] … The meaning of an enactment must be ascertained from its text and
in the light of its purpose. Even if the meaning of the text may appear plain in
isolation of purpose, that meaning should always be cross-checked against
purpose ... In determining purpose the Court must obviously have regard to
both the immediate and the general legislative context. Of relevance too may
be the social, commercial or other objective of the enactment.
…
46 Legislation Act 2019, s 10(1).
47
Commerce Commission v Fonterra Co-operative Group Ltd, [2007] NZSC 36, [2007] 3 NZLR
767. Footnotes omitted.
[24] Where, as here, the meaning is not clear on the face of the legislation,
the Court will regard context and purpose as essential guides to meaning.
[110] In
AFFCO New Zealand Ltd v New Zealand Meat Workers and Related Trades
Union Inc, Arnold J for the Supreme Court stated:48
The starting point for the court’s consideration of context will be the
immediate context provided by the language of the provision under
consideration. We accept that surrounding provisions may also provide
relevant context, and that it is legitimate to test the competing interpretations
against the statute’s purpose, against any other policy considerations reflected
in the legislation and against the legislative history, where they are capable of
providing assistance. While we accept Mr Jagose’s point that the context must
relate to the statute rather than something extraneous, we do not see the
concept as otherwise constrained.
Why the meaning of the legislation is not clear
[111] Here, the meaning of various provisions in s 80A is not clear.
[112] On its face, s 80A would appear to be about freshwater issues as if they are
distinct from other aspects of the environment. The heading to subpt 4 of pt 5 is
“Freshwater planning process”. Section 80A refers to a “freshwater planning
instrument” and the “freshwater planning process”. Associated with this was the
establishment of a “freshwater hearings panel” and the appointment of “freshwater
commissioners” under pt 4 of sch 1.
[113] Section 80A(2)(a) defines a freshwater planning instrument as meaning “a
proposed regional plan or regional policy statement for the purpose of giving effect to
any national policy statement for freshwater management”. It does not say whether it
will be sufficient if a regional policy statement gives effect
in any way to such a
national policy statement. It does not say whether it is, there, referring to those parts
of a national policy statement for freshwater management that relate directly to the
management of freshwater. It does not say whether, if a regional policy statement is
giving effect to a national policy statement, it is the whole of the regional policy
statement that will qualify as a freshwater planning instrument or whether it will be
only those parts that give effect to such a national policy statement.
48
AFFCO New Zealand Ltd v New Zealand Meat Workers and Related Trades Union Inc [2017]
NZSC 135, [2018] 1 NZLR 212 at [65].
[114] Section 80A(2)(b) extends the definition of a freshwater planning instrument
beyond what is captured by s 80A(2)(a) to include an instrument that “relates to
freshwater”. This must be other than for the purpose of giving effect to a national
policy statement for freshwater management, but s 80A(2)(b) does not otherwise say
what “relates to freshwater” means.
[115] There is then the limitation in s 80A(3). It says:
However, if the council is satisfied that only part of the instrument relates to
freshwater, the council must—
(a) prepare that part in accordance with this subpart and Part 4 of Schedule
1; and
(b) prepare the parts that do not relate to freshwater in accordance with Part
1 of Schedule 1 or, if applicable, subpart 5 of this Part.
[116] Section 80A(3) does not state that, where a proposed regional plan or policy
statement has been prepared for various purposes or pursuant to various functions, the
regional council
must satisfy itself which parts of the instrument relate to freshwater.
It is also not clear whether the proviso in s 80A(3) applies only to the way in which an
instrument would qualify as a freshwater planning instrument as referred to in s
80A(2)(b). Does s 80A(3) also require a regional council to decide what parts of a
national policy statement for freshwater management relate to freshwater for the
purpose of deciding whether an instrument is a freshwater planning instrument
because it gives effect to a national policy statement for freshwater management?
Legislative process
[117] As most parties acknowledged, and the select committee (the Environment
Committee) recognised,49 it is not clear from the wording of s 80A what constitutes a
freshwater planning instrument. It is accordingly necessary and appropriate to
consider the context in which the legislation was enacted and its purpose, as apparent
from the legislative process.
[118] On 19 June 2019, the Ministry for the Environment prepared a policy
document for Cabinet seeking a decision to amend the RMA by introducing a new
49 Resource Management Amendment Bill 2019 (180-1) (select committee report) at 5-6.
planning process for freshwater. The document was headed “Impact Statement: A new
planning process for freshwater” (the Policy Document).
[119] In
R v Howard, the Court of Appeal referred to a tendency for judgments to
refer to commission and committee reports.50 The Court of Appeal said, where the
language in relevant legislation was clear, such reports would not be of value in
construing the relevant phrase but “[i]t would be otherwise if the language were
ambiguous”.51 The Court referred to cases where such reports offered an aid to the
interpretation of legislation which was unclear on its face.52
[120] In
Minister of Conservation v Mangawhai Harbour Restoration Society Inc,
Campbell J said there was doubt over the extent to which Cabinet papers can be used
in the interpretation of Acts of Parliament.53 He referred to the Court of Appeal’s
judgment in
Sky City Auckland Ltd v Gambling Commission.54 The Court of Appeal’s
reservation there was as to reliance or reference to papers that had been prepared for
Cabinet where their intention at the time of the relevant Cabinet meeting may be
different from Parliament’s intention when passing the Amendment Bill into law.55
These papers were distinguished from materials that were put before Parliament or
were part of the Parliamentary processes, for example, a select committee report or
explanatory notes.
[121] The Policy Document is consistent with the Amendment Bill finally presented
to and approved by Parliament. It was advice prepared by the Ministry for the
Environment and presented to Cabinet by the Minister for the Environment. It was
this Minister who introduced the Amendment Bill to Parliament on its various
readings. He was also responsible for the coming into force of the National Freshwater
Policy to which the Amendment Act related.56
50
R v Howard [1987] 1 NZLR 347 (CA) at 352.
51 At 353.
52 At 352.
53
Minister of Conservation v Mangawhai Harbour Restoration Society Inc [2021] NZHC 3113 at
[105].
54
Skycity Auckland Ltd v Gambling Commission [2007] NZCA 407, [2008] 2 NZLR 182.
55 At [40]-[41].
56 RMA, s 52(2).
[122] The explanatory note to the Amendment Bill when it was first introduced under
the heading “Regulatory impact assessments” stated:57
The Ministry for the Environment produced regulatory impact assessments in
June and September 2019 to help inform the main policy decisions taken by
the Government relating to the contents of this Bill.
Copies of these regulatory impact assessments can be found at—
• …
• http://www.treasury.govt.nz/publications/informationreleases/ria
[123] Through that link, Parliament was referred to the Policy Document.
[124] The Policy Document identified that the problem requiring Government
intervention was the continuing decline in freshwater quality, and the current
regulatory system was not producing outcomes fast enough. It said the best option
would be to assist in councils implementing the National Freshwater Policy by 2025.
This would be done by introducing a “new, faster process for planning for freshwater
under the RMA” with a “central panel of suitably experienced freshwater hearing
commissioners … to convene local panels to hear and make recommendations on
freshwater plan changes”.
[125] The Policy Document identified that the key problem to be addressed in order
to enable faster and improved implementation of national policy statements for
freshwater management was the statutory planning processes under the RMA. To
address that key problem, the Policy Document referred to its proposed approach
being “mandatory new planning process for freshwater plan changes only”. The
purpose was not to mandate a new freshwater planning process for all new regional
policy statements or changes to regional policy statements. As to that, the Policy
Document said:
It is proposed that the process is restricted to policy statement or plan changes
that relate to freshwater, and would apply from the point of public notification
of the change. … It is intended that the process would include regional plan
changes that relate directly to water quality and quantity, and also to the
control of land use for the purpose of the maintenance and enhancement of
water quality and quantity, recognising the impact the control of land use can
have on freshwater management. Plan changes this would capture could
57 Resource Management Amendment Bill 2019 (180-1) (explanatory note) at 6.
include, for example, changes to regional plans to set limits on water use or
discharges, such as nitrogen, or provisions to identify outstanding water
bodies to ensure the protection of these.
…
Despite difficulties councils may face in separating out freshwater related plan
changes, a clear requirement to use the process removes a perceived avenue
for challenge over the choice of process and makes it more likely that the
[National Freshwater Policy] timeframes will be met, a key objective of the
proposal. It is considered that requiring water related plan changes, which can
include regional land use rules, is the most effective in terms of integrated
management. Only requiring freshwater related plan changes to progress
through the process will limit the impact of the proposal on other aspects of
the resource management system, meaning that implementation should be
more straightforward. There will also be greater consistency in decision-
making regarding freshwater management throughout the country, through
standardised procedures.
[126] In advising on key groups that were likely to be interested in the proposal, the
Policy Document noted:
[A]l tangata whenua have a special interest in and relationship with water.
The comprehensive review of the resource management system, and the
Essential Freshwater programme will more comprehensively consider tangata
whenua perspectives.
(emphasis in original)
[127] The Policy Document mentioned an alternative approach of providing further
implementation support and the use of existing tools under the RMA to strengthen
implementation of the National Freshwater Policy. The Policy Document stated that
the alternatives available would:
… not sufficiently address the overarching problem that councils are
struggling to implement the [National Freshwater Policy] in a timely manner.
On the other hand, the proposed approach would enable a more effective and
co-ordinated approach to freshwater planning nationally, and provide a more
fit for purpose process for freshwater, which recognises the litigious, complex
and costly nature of freshwater planning.
[128] The Policy Document also referred to the option of a new planning process for
a wider variety of plan changes. It said there needed to be more analysis to determine
what other resource management issues might be appropriate for the proposed
freshwater planning process. As to that potential, the Policy Document said:58
This widening in scope would however make the proposal less feasible. It is
already anticipated that the pool of freshwater commissioners will need to
schedule and hear approximately 10-20 freshwater plan changes a year
initially, and cover a wide skill set between them. If further topic areas were
available for consideration through this process, this could increase the cost,
and feasibility of enabling the timely implementation of the [national policy
statements for freshwater management], given that resource would be diverted
to these other topic areas.
It is considered that any wider changes to the planning process should be
considered in a more integrated way, as part of the more comprehensive
review of the resource management system.
[129] The Amendment Bill was presented to Parliament by the Minister for the
Environment for its first reading on 26 September 2019.59
[130] In introducing the Amendment Bill, the Minister said:60
Changes are … necessary to support the delivery of the Essential Freshwater
action plan, which is currently out for consultation. The Government’s
committed to improving New Zealand’s freshwater quality by stopping further
degradation and loss, and reversing past damage. Key to achieving this will
be a new National Policy Statement for Freshwater Management under the
RMA … However, we already know that the majority of councils will not be
fully implementing even the 2017 national policy statement (NPS) until 2030
or later. That 13-year delay makes it clear that the standard RMA planning
process is too slow to implement the new freshwater NPS. So to ensure that
necessary plan changes are made by 2025, after which time the NPS will have
prospective effect, the bill introduces a new specialised planning process for
freshwater plans …
[131] The explanatory note which accompanied the Amendment Bill included these
statements:61
58 At the time this proposal was formulated, the proposal was referring to the National Policy
Statement−Freshwater Management 2014 which was subsequently amended in 2017. The
Minister was working on a new National Policy Statement for Freshwater Management which
took effect on 3 September 2020.
59 Resource Management Amendment Bill 2019 (180-1).
60 (26 September 2019) 741 NZPD 14222.
61 Resource Management Amendment Bill 2019 (180-1) (explanatory note) at 5 and 7.
Improving freshwater management
New specialised planning process for freshwater
To support the urgent need to improve freshwater management, the Bill
provides a new plan making process that councils must use for proposed
regional policy statements of regional plans (or changes) for freshwater. The
Bill requires that councils notify changes to their regional policy statements
and regional plans to implement the [National Freshwater Policy] no later than
31 December 2023, and make final decisions by 31 December 2025.
…
Clause 13 repeals subpart 4 of Part 5, which relates to the collaborative
planning process, and replaces it with a new subpart that establishes the
freshwater planning process. Regional councils must comply with the
freshwater planning process when preparing a freshwater planning instrument.
A freshwater planning instrument means a proposed regional plan, regional
policy statement, or change or variation that—
• gives effect to the National Policy Statement for Freshwater Management
2020; or
• otherwise relates to freshwater.
[132] In its report on the Amendment Bill, the Environment Committee said that a
significant reform from the Amendment Bill would be the introduction of a new
freshwater planning process for regional or unitary councils carrying out regional
freshwater functions.62 Those councils would be required to follow the new freshwater
planning process for proposed regional policy statements and regional plans (including
changes to them) containing provisions that give effect to the National Freshwater
Policy or otherwise relate to freshwater. The new freshwater planning process would
assist councils to meet the 2025 deadline for implementing the requirements of the
National Freshwater Policy.
[133] The Environment Committee referred to the then proposed s 80A(2) and its
statement as to the meaning of “freshwater planning instrument”. The Committee
reported:63
We recognise that what constitutes a “freshwater planning instrument” may
not be clear-cut, and that some planning instruments may have some
provisions that relate to freshwater, and other provisions that do not.
62 Resource Management Amendment Bill 2019 (180-1) (select committee report) at 4.
63 At 5-6.
New s 80A(4)(a) would require a regional council to notify the public of the
new freshwater planning instrument. Some of us think that, at that stage, the
council should provide a statement about whether the whole instrument will
undergo the freshwater planning process (under Part 4 of Schedule 1), or if
only part of it will. The part that does not would undergo the standard planning
process (under Part 1 of Schedule 1). Some of us believe this approach would
provide greater transparency and reduce confusion.
To effect this change, we recommend amending new section 80A(3) and
inserting new clause 72(1)(A) which would insert new clause 5(2A) into
schedule 1 of the RMA.
(emphasis added)
[134] Before the Environment Committee reported back, s 80A(3) in the Amendment
Bill had stated only “[a] regional council must prepare a freshwater planning
instrument in accordance with this subpart and Part 4 of Schedule 1”.
[135] The Environment Committee added the following to s 80A(3) in the
Amendment Bill reported to Parliament:64
However, if the council is satisfied that only part of the instrument
relates to freshwater, the council must—
(a) prepare that part in accordance with this subpart and Part 4 of
Schedule 1; and
(b) prepare the parts that do not relate to freshwater in accordance
with Part 1 of Schedule 1.
[136] The version enacted into law included the words “or, if applicable, subpart 5
of this Part” in s 80A(3)(b).
[137] The Ministry for the Environment prepared the Report on the Amendment Bill
in March 2020. The Report referred to and considered submissions made to the
Environment Committee. It was made available to Parliament at the same time as the
Environment Committee reported back to Parliament and before the second reading
of the Amendment Bill began on 27 May 2020.
[138] In describing the broader context of the Amendment Bill, the Ministry said:
64 Resource Management Amendment Bill 2019 (180-2), cl 13.
There has been growing criticism that decisions under the RMA have not
resulted in positive outcomes for the natural environment. Freshwater,
biodiversity and the marine domain are facing pressures from human
activities, and in many places ecosystems are in decline. Meanwhile the cost
and complexity of RMA processes can form a barrier to delivering efficient
social and economic outcomes (eg affordable housing). There is widespread
agreement that substantial reform of the RMA is needed. To address this, the
Government has embarked on a two-staged review of the resource
management system. This Resource Management Amendment Bill comprises
stage one.
[139] Stage two referred to the review of the RMA by a panel chaired by a retired
Court of Appeal Judge, Tony Randerson.
[140] The Report said the objectives of the amendments proposed in the stage one
Amendment Bill were to:
A. reduce complexity in existing RMA processes, increase certainty for
participants, and restore previous opportunities for public participation
B. improve existing resource management processes and enforcement
provisions, and
C. improve freshwater management.
In relation to the third objective, proposals in this Bill are in support of the
Government’s
Essential Freshwater programme …
[141] As to the freshwater planning process, the Report stated:
The Government is committed to improving New Zealand’s freshwater quality
by stopping further degradation and loss, and reversing past damage. Key to
achieving the freshwater goals is a new NPS-FM [national policy statement
for freshwater management] which is expected to be in place by mid-2020.
This needs to be implemented by regional councils in a timely way if it is to
be effective.
As previous noted, recent reporting from councils to the Ministry has shown
that the majority of regional councils are unlikely to meet the existing deadline
of fully implementing the 2017 NPS-FM by 2025 and are likely to take until
2030 or later (the deadline can currently be extended to 2030 in certain
circumstances). The Government’s view is that such delays are unacceptable
and risk further degradation of rivers, lakes and aquifers.
The reasons for delay are varied but include slow standard RMA plan-making
processes. The freshwater planning process would require plans to be in place
by 2025 which the Government sees as an essential first step.
[142] The Report noted that council submitters and others had questions on the scope
of what is captured by the freshwater planning process. Some submitters suggested
the scope was too wide, whereas others suggested it was too narrow because it was
limited to freshwater. The Report said some submitters were concerned about the
separation of freshwater from other aspects of councils’ planning functions. The
submitters said, in that way, the Amendment Bill discouraged integrated management
across, for instance, freshwater and coastal boundaries. The Report referred to the
ORC submitting that to isolate the development of freshwater planning was contrary
to good integrated plan-making and resource management.
[143] In its analysis of submissions, the Report said:
Clarity around the scope of matters captured by freshwater planning process
and integrated management
The phrase “giving effect to the NPS-FM” [National Policy Statement for
Freshwater Management], captures all requirements that arise from the NPS-
FM. This includes the NPS-FM requirements to consider and recognise Te
Mana o te Wai and to recognise the interactions of Ki uta ki tai between the
ecosystems of freshwater, land and sensitive receiving environments
including the coast. Planning content will also be driven by regional council
functions under section 30(1)(c) to
control the use of land for the purpose of
the maintenance and enhancement of the quality of water and water bodies
and coastal water and the maintenance of the quantity of freshwater.
The phrase “or otherwise relates to freshwater” is intended to be a catchall for
any water related matter that might not be captured under the NPS-FM. For
example, to manage structures in the beds of rivers/lakes or flood management
policy/rules. This seeks to avoid a situation where a matter that is clearly
water related cannot go through the freshwater planning process because it is
not captured by the NPS-FM.
Extending scope beyond freshwater (regional plans and unitary plans)
Many councils want the process to be extended to capture
all regional council
functions. Marlborough District Council, Tasman District Council and others
seek to combine regional and district plan provisions in a single process.
We acknowledge the efficiencies that this may bring, but this must be
considered against the key driver of the policy change, which is to have
freshwater planning instruments in place by 2025. Councils have told us that
reaching that date will already be a challenge. Including additional RMA
matters that need to be developed and notified by 2023 would add further to
the burden of reaching the notification date and ultimately may risk not having
freshwater plans in place by 2025. We do not recommend a change to allow
the hearings panel to address wider regional matters or district plan provisions
at this time.
Relationship to other plan reviews
We acknowledge the points made about integrated plans, integrated catchment
management and efficient processes. However the policy directive to have
plans notified by 2023 makes this change impracticable at this time. Councils
may be able to have members in common for freshwater hearings panels and
panels dealing with other matters.
(emphasis in original)
[144] Similarly, the Report referred to submitters’ concerns as to notification
timeframes for freshwater planning instruments but emphasised the Government’s
desire to have all instruments notified by 31 December 2023 to halt freshwater
degradation and start to improve water quality.
[145] In its definition of “freshwater planning instrument” in s 80A(2)(a), the
Amendment Bill referred to a proposed regional plan or regional policy statement for
the purpose of giving effect to the National Freshwater Policy.65 The Report
recommended Parliament proceed with s 80A(2)(a) as in the Amendment Bill but with
the removal of the 2020 date.
[146] The Report referred to s 80A(3) in the Amendment Bill as requiring regional
councils to prepare freshwater planning instruments in accordance with pt 4 of sch 1.
It said no issues had been raised in relation to this section and they recommended
Parliament proceed with s 80A(3) as drafted.
[147] In introducing the Amendment Bill for the third reading on 24 June 2020, the
Minister for the Environment, David Parker, said:66
The bill we are considering today includes provisions to improve freshwater
quality. The bill introduces a new freshwater planning process that ensures
regional council plans are updated as soon as possible and in a manner
consistent with Te Mana o te Wai.
Interpretation of s 80A
[148] The above aspects of the legislative process indicate that, with the Amendment
Act, Parliament was neither intending nor contemplating that the whole of a regional
65 Resource Management Amendment Bill 2019 (180-1), cl 13.
66 (24 June 2020) 747 NZPD 19015.
policy statement which dealt with matters other than freshwater management would
be subject to the freshwater planning process.
[149] Rather, the background, wording and references to freshwater in s 80A were
all consistent with Parliament contemplating that issues relating to freshwater could
be identified as discrete matters and only such matters would be subject to the
freshwater planning process. The possibility of widening the scope of matters that
might be considered through the freshwater planning process was brought to the
attention of Cabinet and Parliament through the Ministry’s initial Policy Document
and to Parliament through the Report after the Environment Committee process. That
option was expressly rejected primarily because it would delay progress in improving
the quality of freshwater management which the Government was committed to.
[150] The ORC and Ngā Rūnanga argued that the purposes of integrated
management, the fundamental concepts of Te Mana of te Wai and ki uta ki tai required
the ORC to recognise that all aspects of the environment and all aspects of human
activity are interconnected and relate to freshwater. So, everything in the proposed
regional statement could properly be determined to give effect to the National
Freshwater Policy or relate to freshwater.
[151] When the Amendment Act was passed in 2020, the need for an integrated
approach to the management of natural resources was already in the RMA. If
adherence to the principle of integrated management could justify the whole of a
proposed regional policy statement or plan being treated as a freshwater planning
instrument under s 80A(2)(a), there would have been no need for the particular
provision in s 80A(2)(b) or the qualification referred to in s 80A(3).
[152] If Parliament had intended s 80A(3) to be a qualification only as to the way
and extent to which a regional statement might qualify as a freshwater planning
instrument under s 80A(2)(b), it could reasonably have been expected to say so. It
could also have been expected that, if the qualification applied only to the definition
in s 80A(2)(b), it would have appeared immediately adjacent to s 80A(2)(b) rather
than as s 80A(3) where logically it could relate to both s 80A(2)(a) and (b).
[153] Significantly, the qualification to the definition of freshwater planning
instrument in s 80A(3) was added only when the Environment Committee reported
back and was not included when s 80A(2)(b) first appeared in the Amendment Bill.
[154] Regional councils, including the ORC, submitted to the Environment
Committee that splitting the planning processes for regional plans would make it more
difficult to provide for the integrated management of natural resources. The Ministry’s
Policy Document outlined that timely compliance and progress in accordance with the
National Freshwater Policy was the primary objective of the policy changes.
[155] The Amendment Act established the freshwater hearings panel.67 It required
freshwater hearings panels to include five members who, collectively, have expertise
in freshwater management issues.68 Although it left final decisions to the regional
council, it transferred significant decision-making ability on freshwater issues to the
freshwater hearings panel and reduced the scope of potential appeals to the
Environment Court on freshwater issues.69 I consider the Amendment Act
contemplated that the focus of freshwater hearings panels would be on protecting and
improving the quality of freshwater in New Zealand and, in particular, giving effect to
national policy statements on freshwater management by 2025. There is potential for
members with other areas of expertise to be appointed to hearing panels.70
Nevertheless, I agree that Parliament contemplated the focus of the freshwater
planning process would be narrower than the purpose of the RMA generally.
[156] Regional councils must prepare regional policy statements consistently with
the purpose of the RMA, which is to promote the sustainable management of natural
and physical resources.71 Sustainable management means:72
… managing the use, development, and protection of natural and physical
resources in a way, or at a rate, which enables people and communities to
provide for their social, economic, and cultural well-being and for their health
and safety while—
67 Amendment Act, s 103; RMA, sch 1 pt 4.
68 Amendment Act, s 103; RMA, sch 1 cls 59 and 65.
69 Amendment Act, s 22; RMA, s 80A(5)(d) and sch 1 cls 54-56.
70 RMA, sch 1 cl 59.
71 Section 61(1)(b).
72 Section 5.
(a) sustaining the potential of natural and physical resources (excluding
minerals) to meet the reasonably foreseeable needs of future generations;
and
(b) safeguarding the life-supporting capacity of air, water, soil, and
ecosystems; and
(c) avoiding, remedying, or mitigating any adverse effects of activities on
the environment.
[157] To interpret s 80A in a way that would allow the whole of a plan or policy
statement to be subject to the freshwater planning process would likely result in all
aspects of that instrument being considered primarily from a freshwater perspective.
The legislative history indicates this is not what Parliament intended with the
introduction of s 80A.
[158] I accordingly do not consider that the ORC’s function of achieving integrated
management of natural and physical resources and the requirement to recognise and
give effect to the fundamental concepts of Te Mana o te Wai and ki uta ki tai required
or allowed it to treat the whole of its proposed regional statement as a freshwater
planning instrument so as to subject it to the freshwater planning process.
[159] In reaching that determination, I have not sought to minimise the importance
of integrated management or Te Mana o te Wai in dealing with all resource
management issues which have to be dealt with in the proposed regional statement.
Te Mana o te Wai remains the fundamental concept in the National Freshwater Policy.
[160] A regional council, in preparing regional policy statements and their hearing
panels in reviewing the statements, or freshwater hearings panels, will all have to give
effect to the principles of Te Mana o te Wai and of Te Tiriti o Waitangi in their
consideration of all matters they are separately concerned with.73
[161] It will be only those parts of a proposed regional policy statement that relate to
freshwater that can be part of a freshwater planning instrument. All other parts of a
regional policy statement will remain subject to the normal planning process set out
in pt 1 of sch 1 of the RMA. As the affidavits from Mr Parish for the CRC and Mr
73 RMA, s 61(1)(b) and (da) and sch 1 cl 50(d).
Ellison for Ngā Rūnanga demonstrated, regional councils must and do work in
partnership with local iwi in carrying out all their functions under the RMA. They
will have to continue doing this when dealing with those parts of the regional policy
statement that are not subject to the freshwater planning process.
[162] How councils do this and the decisions they make will be subject to review by
interested parties, with the full rights of appeal to the Environment Court which they
currently have. They will not have the same rights of appeal as to matters that are
subject to the freshwater planning process.
[163] In their submissions for the Minister, counsel referred to a statement from the
Environment Court in
Bay of Islands Maritime Park Inc v Northland Regional
Council.74 The Environment Court said it was the intent of the National Freshwater
Policy and of the relevant legislation to provide an integrated approach to freshwater
management:75
The objective was not to subsume the entire environment including the
[coastal marine area] and land use within the purview of the freshwater
regulations or freshwater regime set up under s 80A. To do so would be
anathema given the requirement to develop the regional plans and regional
coastal plans separately to those for freshwater. Having said that, we
acknowledge that it is intended that the [National Freshwater Policy] should
work together with other documents including the [New Zealand Coastal
Policy Statement] regional policies and plans and regional coastal plans to
create a seamless whole.
[164] My interpretation of s 80A recognises that Parliament established a separate
planning process for those parts of a proposed regional statement that relate to
freshwater. That being the case, those involved with both the freshwater planning
process and the normal process in pt 1 of sch 1 will have to be fully informed as to
how matters are developing or are decided through each process to achieve the
integrated management of resources and the fundamental concept of Te Mana o te Wai
and ki uta ki tai.
74
Bay of Islands Maritime Park Inc v Northland Regional Council [2021] NZEnvC 6, [2021]
NZRMA 256 at [32].
75 At [32].
Conclusion as to how s 80A must be read
[165] I have concluded that s 80A(2)(a) should be interpreted and applied as if it
reads “a freshwater planning instrument means a proposed regional plan or regional
policy statement for the purpose of giving effect to any national policy statement for
freshwater management, subject to s 80A(3)”.
[166] Section 80A(3) establishes a mandatory obligation for a regional council to
prepare the parts of instruments that relate to freshwater through the freshwater
planning process, and all other parts through the standard process in pt 1 of sch 1.
[167] That wording is consistent with the submission made by Forest and Bird and
supported by a number of parties that s 80A(3) drives what will qualify as a freshwater
planning instrument, either in whole or in part.
[168] I thus conclude that only those parts of the proposed regional statement which
relate to freshwater could be treated as a freshwater planning instrument and so be
subject to the freshwater planning process.
Why the ORC’s interpretation and application of s 80A of the RMA was in error
[169] It was for the ORC to make decisions as to which parts of the proposed regional
statement relate to freshwater on a correct interpretation of s 80A.
[170] I am satisfied the ORC did not do so. They considered the requirement for
integrated management of resources and Te Mana o te Wai allowed them to determine
that everything in their proposed regional statement related to freshwater or was to
give effect to the National Policy Statement. For the reasons discussed, that was an
error and not an approach they were permitted to take.
[171] I am not satisfied on the evidence that the ORC adequately considered what
parts of the proposed regional statement related to freshwater and which parts did not,
as s 80A(3) required them to do.
[172] I am also not satisfied that the whole of the proposed regional statement was
prepared to give effect to the National Freshwater Policy or the 2014 National Policy
Statement on Freshwater Management as amended in 2017. This is not surprising.
The ORC had committed to significant work, consultation and investment in preparing
a new proposed regional statement on the recommendation of the Minister for the
Environment in November 2019. Nevertheless, they were aware of the Amendment
Bill and a new freshwater planning process as they made submissions to the
Environment Committee in 2019.76 They were aware of the National Freshwater
Policy that came into effect on 3 September 2020.
The Court’s task
[173] A number of parties, including the ORC, presented submissions on the basis
the Court would effectively review in detail the whole of the proposed regional
statement and decide which parts could be treated as a freshwater planning instrument.
[174] That would have been a daunting task. The proposed regional statement is 220
pages long, has five parts and covers nine domains and topics.
[175] In its submissions, the CRC acknowledged:
… the issues raised in this case require a detailed understanding of the function
and design of regional planning documents, and deal with difficult tensions
between many different interests.
[176] Rayonier and Ernslaw submitted it is for the ORC to review the regional policy
statement and determine which provisions meet the requirements of s 80A(2) correctly
applied and which do not. They submitted this is because the process is likely to be a
highly technical and detailed one. They submitted it might also necessitate some
restructuring of the proposed regional statement or rewriting of certain provisions.
[177] In essence, the ORC, in these proceedings, sought a declaration as to how s
80A is to be interpreted and applied. Section 80A(3) makes it clear that the regional
council must satisfy itself which parts of its proposed planning document relates to
freshwater in applying s 80A.
76 See above at [142].
[178] Appeals from Environment Court decisions come to the High Court as to
alleged errors of law.77 There is limited scope under the RMA for decisions made by
regional councils or other territorial authorities to come before the High Court through
judicial review.78 In such proceedings, it is well established that it will not be for the
High Court to make decisions as to the merits of the council’s decision on the particular
issue before it. The High Court’s function is to identify whether there has been an
error of law. If there has been an error, the High Court may remit the issue back to the
territorial authority that made the relevant decision or to the Environment Court so
they can make a decision on the merits applying the law correctly.
[179] That is the approach which should be adopted in this case. It is the ORC, not
this Court, who must exercise their statutory obligation to determine which parts of
the proposed regional statement relate to freshwater under a correct interpretation of s
80A.
[180] Most of the parties however made it clear that, through these proceedings, they
are wanting the Court to provide clarity as to how s 80A is to be applied, clarity which
is lacking in the legislation as it stands.
[181] The key issue is what “relates to freshwater” means and how is that
qualification to be met.
[182] As referred to earlier, through their differing submissions, a number of parties
suggested different ways in which the words “relates to freshwater” might be
interpreted by regional councils in formulating their plans or policy statements and
deciding what parts should be part of a freshwater planning instrument and so subject
to the freshwater planning process.
77 RMA, s 299.
78 See s 296.
The Court’s view as to how the words “relates to freshwater” are to be
interpreted and applied
[183] In the
New Zealand Oxford Dictionary, “relate to” is said to mean “have
reference to; or concern;79 and “concern” means be relevant or important to, relate to,
or be about.80
[184] Because the meaning of the legislation is unclear, the interpretation cannot be
based on just what might be considered the ordinary meaning of “relate to”.
[185] In
Auckland Harbour Board v NZ Harbours IUOW, the Court of Appeal, on a
case stated, had to decide whether a dispute over manning levels in tugs was “related
to” a collective agreement under s 116(1)(b) of the Industrial Relations Act 1973 and
so within the jurisdiction of the Arbitration Court.81
[186] The Court of Appeal said:82
So far as a paraphrase of the words “related to” in the particular context may
be of any help, we think that they require a sufficiently direct connection
between any matter of dispute and matters dealt with in the award or collective
agreement. Very often it can only be a question of fact and degree. This head
of jurisdiction is obviously wider than mere interpretation of the instrument,
which is separately referred to in the standard dispute of rights clause.
[187] Of significance, the Court of Appeal decided the dispute did relate to the
collective agreement, not just by deciding how “related to” might be paraphrased but
by considering the issue in relation to the facts before it.
[188] In
Mercury NZ Ltd v The Waitangi Tribunal, the High Court was concerned
with a judicial review challenge to a preliminary determination of the Waitangi
Tribunal proposing to exercise the resumption power as to two significant areas of
land.83 Section 8A(2) of the Treaty of Waitangi Act 1975 provided that the Waitangi
Tribunal can recommend that land or an interest in land transferred to a State enterprise
79 Graeme Kennedy and Tony Deverson (eds)
The New Zealand Oxford Dictionary (Oxford
University Press, Melbourne, 2008) at 948.
80 At 225.
81
Auckland Harbour Board v NZ Harbours IUOW (CA217/86), 28 October 1987.
82 At 969.
83
Mercury NZ Ltd v The Waitangi Tribunal [2021] NZHC 654, [2021] 2 NZLR 142.
be returned to Māori ownership where a claim
relates in whole or in part to land or an
interest in land to which the section applies. In the High Court, Cooke J said the
Waitangi Tribunal had analysed the requirement that a well-founded claim “relates to”
land covered by these provisions in detail. The Tribunal referred to previous dicta to
the effect that legislation concerning the Treaty should not receive a narrow
interpretation. It concluded the provisions gave a broad jurisdiction to provide a
remedy for the adverse consequences of all land-based claims, whether or not the well-
founded claims concerned the land in question.84
[189] In discussing how the words “relates to” were to be considered, Cooke J said:
[69] I accept without hesitation that the provisions should receive a broad
and unquibbling interpretation. The dicta along these lines strike me as a
manifestation of the requirement that the text of an enactment should be
interpreted in light of its purpose. It can be presumed that Parliament intended
to give full effect to the principles of the Treaty when enacting Treaty-related
provisions, particularly provisions intended to remedy Treaty breaches. The
ultimate question is what the particular purpose of these provisions is in light
of that presumption.
[70] One begins with the text of the enactment. On its natural reading the
requirement that the claims “relates to” the land means that the claims
concern
that land. Moreover, the fact that the enactment directs the “return” of the land
would suggest that the claim concerning the land would be about the
circumstances under which the land left the possession of Māori, thus
providing the justification for the land to be returned. The requirement that the
claim be “well-founded” essentially means that the Tribunal is upholding the
claim giving rise to the remedy of return of the land. The three concepts –
“well-founded” claims, “relates to”, and “return” – are inherently interlinked.
…
[72] … I do not agree that the true scope of the provisions turns on the literal
interpretation of the words that have been concentrated upon. I do not agree
that the words “relates to” mean something substantially different from “in
respect of” as the Tribunal held, and as the Muriwhenua Land Tribunal said.
There are various verbal formulations that could have been used: “relates to”,
“in respect of”, “concerning,” “over” or even just “about”. All these phrases
have somewhat elastic meanings that depend on the circumstances of their use
to gain any more precise content. It is the circumstances of their use in these
provisions in light of the other words of the sections and the purpose of the
provisions as a whole that is decisive in my view.
(footnotes omitted)
84 At [52].
[190] Cooke J then discussed various aspects of the background to the passing of the
relevant legislation including other legislation which led him to the conclusion that,
for land to be caught on the basis it was related to a claim before the Tribunal, it had
to have been land that was wrongly taken from the Māori owners by the Crown. This
judgment illustrates how the meaning of “relates to” has to be established in light of
the purpose and context in which the words were used and, importantly, the factual
context of the case.
[191] The words “relates to freshwater” must be interpreted having regard to the
purpose for which s 80A was enacted. That purpose was to address the decline in
freshwater quality in New Zealand.85
[192] Section 80A(3) drives the interpretation of s 80A. Because of this, parts of a
regional policy statement will qualify to be part of a freshwater planning instrument
pursuant to either s 80A(2)(a) or (b) if they directly relate to the maintenance or
enhancement of the quality or quantity of freshwater.
[193] In accordance with s 80A(2), parts of the proposed regional statement may
relate to freshwater management in the manner required to be part of a freshwater
planning instrument either through the way those parts give effect to the National
Freshwater Policy or through otherwise relating to freshwater. Parts that give effect
to the National Freshwater Policy will only qualify if they are giving effect to those
parts of the National Freshwater Policy that directly relate to the maintenance or
enhancement of freshwater quality or quantity.
[194] As to this, the ORC will have to first determine which parts of the National
Freshwater Policy are directly concerned with the quality or quantity of freshwater as
defined in s 2 of the RMA. The ORC’s concern will be with those parts of the policy
which relate directly to matters impacting on the quality or quantity of freshwater,
including groundwater, in lakes, rivers, wetlands or in estuaries that are part of the
receiving environment.
85 See above at [126]; Resource Management Amendment Bill 2019 (180-1) (explanatory note) at 5.
[195] A number of provisions in the National Freshwater Policy do not relate directly
to the quality or quantity of freshwater. A number of provisions are aspirational in
referring to the benefits that might be obtained from improving freshwater quality, for
example, reference to the obligations in Te Mana o te Wai to prioritise the health and
wellbeing needs of people.86
[196] There are parts of the National Freshwater Policy, particularly the fundamental
concept of Te Mana o te Wai and ki uta ki tai, that refer to the values tangata whenua
attach to the quality of freshwater and the need for those values to be recognised in the
management of freshwater issues.87
[197] There are parts of the National Freshwater Policy that impose administrative
obligations on regional councils that will assist in maintaining water quality but which
might not have to be referred to in a regional policy statement.88
[198] There are parts of the National Freshwater Policy that, on their face, do not
purport to be directly related to maintaining or improving water quality or quantity.89
[199] Conversely, parts of the National Freshwater Policy do clearly relate directly
to freshwater quality and require regional councils to maintain and enhance the quality
of freshwater. For instance, the establishment of freshwater management units for its
region90 and the ensuing provisions as to how these units are to operate and be utilised
to maintain and improve water quality.91 There can be little doubt that the Minister, in
recommending to the Governor-General that the National Freshwater Policy be
published in September 2020, intended that regional councils would give effect to such
parts of the National Freshwater Policy to facilitate that happening without delay.
Insofar as a regional policy statement does so, those parts would be subject to the
freshwater planning process.
86 National Freshwater Policy, cl 1.3(4).
87 Clause 3.2.
88 See cls 3.23 (mapping and monitoring of natural inland wetlands); 3.27 (monitoring primary
contact sites); 3.29 (setting up freshwater accounting systems) and 3.30 (assessing and reporting).
89 For example, cl 3.33 applies only to specified vegetable growing areas as identified in an appendix
to the National Freshwater Policy.
90 National Freshwater Policy, cl 3.8.
91 Clauses 3.7(2), 3.9−3.17, 3.22−3.24, 3.28 and 3.32.
[200] The National Freshwater Policy is concerned with the quality of freshwater and
the effects on the receiving environment of freshwater on a whole of catchment basis.
This does not mean that any part of a regional policy statement concerned with the
catchment for or receiving environment from freshwater will relate to freshwater for
the purpose of s 80A. It will be only to the extent parts of the proposed regional
statement regulate activities in the catchment or receiving environment, because of
their effect on the quality or quantity of freshwater, that policies or objectives for the
catchment or receiving environment will relate to freshwater for the purposes of s 80A.
[201] It is not for this Court, in the context of these proceedings, to decide which
parts of the National Freshwater Policy relate to freshwater management in the manner
required for the purposes of applying s 80(2). The ORC will however have to make
that determination when considering whether any particular part of the proposed
regional statement relates to freshwater through the way it gives effect to the National
Freshwater Policy.
[202] In accordance with s 80A(2)(b), there may potentially be other ways in which
provisions in the proposed regional statement can qualify to be part of a freshwater
planning instrument. For that to be so, the ORC will have to satisfy itself that those
parts relate directly to matters that will impact on the quality and quantity of
freshwater, including groundwater, lakes, rivers and wetlands. The ORC will also
have to satisfy itself that the parts are not concerned with sea water or are part of a
proposed regional coastal plan or a change or variation to that plan.92
[203] Consistent with the purpose of the Amendment Act and participatory rights
under the RMA, in applying s 80A, the starting point must be that all of the proposed
regional statement will be subject to the normal planning process set out in pt 1 of sch
1 of the RMA. It will be only those parts of the proposed regional statement that
directly relate to freshwater management, in the manner just discussed, that can be
parts of a freshwater planning instrument and so subject to the freshwater planning
process.
92 With reference to s 80A(8) of the RMA.
[204] With such an approach, the ORC could not decide that, because there is a
provision that relates to freshwater within a specific chapter, the whole of that chapter
should be treated as relating to freshwater. Conversely, there may be a chapter which,
to a significant extent, relates to freshwater. That is likely to be true as to the chapter
on land and water. Nevertheless, there may be policies, objectives or rules in a land
and water chapter that do not relate to freshwater. Such parts of that chapter, in terms
of s 80A, could not be treated as part of a freshwater planning instrument.
[205] The national planning standards require that there be a chapter in a proposed
regional statement on urban form and development. In that chapter there may be
objectives, policies or rules that are directly for the purpose of managing freshwater.
It will be only those parts of a topic chapter on urban form and development that relate
directly to freshwater management that can be part of a freshwater planning
instrument.
[206] Parts of a proposed regional statement cannot be treated as parts of a freshwater
planning instrument simply because there is some connection to freshwater through
the concepts of Te Mana o te Wai, ki uta ki tai or the integrated management of natural
and physical resources. To hold otherwise would be contrary to Parliament’s intention
in s 80A and pt 4 of sch 1 to establish a dual planning process where only parts of a
regional policy statement directly relating to freshwater would be subject to the
freshwater planning process.
[207] This does not mean that the fundamental concept of Te Mana o te Wai, ki uta
ki tai and integrated management of natural resources can be disregarded either in the
planning process in pt 1 of sch 1 or in the freshwater planning process.
[208] They will be fundamental to regional councils in the formulation of a proposed
regional policy statement and to the Environment Court when it might have to consider
issues arising out of a regional policy statement on appeal. To the extent those
principles are relevant to matters that are not part of the freshwater planning process,
those who consider such principles have not been adequately recognised by a regional
council will have full rights of appeal to the Environment Court. That Court is a
specialist tribunal, well equipped to recognise the importance of integrated
management of natural and physical resources and the fundamental concept of Te
Mana o te Wai. Submitters would not have such rights of appeal if the matters they
are concerned with are to be subject to the freshwater planning process.
[209] It will be for the ORC to decide, in the particular circumstances it faces and
with the report if has already prepared, how it recognises s 80A(3) and prepares those
parts that do relate to freshwater as a freshwater planning instrument.
[210] As the Ministry for the Environment foreshadowed, it may be that some
regional councils will prepare a specific regional freshwater plan or a plan change that
only gives effect to the National Freshwater Policy so that all provisions in such
documents will go through the freshwater planning process.93
What, if any, declarations should be made in light of the earlier conclusions in
this judgment?
[211] In its statement of claim, the ORC sought the following declarations:
1. The Proposed Otago Regional Policy Statement 2021 is a freshwater
planning instrument under section 80A(1)−(3) of the Resource
Management Act 1991.
2. The Otago Regional Council may continue to prepare the Proposed Otago
Regional Policy Statement 2021 in its entirety under the freshwater
planning process in Subpart 4 of Part 5 and Part 4 of Schedule 1 of the
Resource Management Act 1991.
3. In the alternative to (1) and (2), if the Court finds that Otago Regional
Council may not continue to prepare part of the Proposed Otago Regional
Policy Statement 2021 under the freshwater planning process in Subpart
4 of Part 5 and Part 4 of Schedule 1 of the Resource Management Act
1991, then:
(a) That part must be prepared in accordance with Part 1 of Schedule 1
of the Resource Management Act 1991; and
(b) That part must be removed from the freshwater planning process in
Subpart 4 of Part 5 and Part 4 of Schedule 1 of the Resource
Management Act 1991 and further prepared in accordance with Part
1 of Schedule 1 of the Resource Management Act 1991; and
(c) That part need not be re-notified under Schedule 1 of the Resource
Management Act 1991; and
93
A new Freshwater Planning Process: Technical guidance for councils, above n 40, at 13.
(d) The remainder of the Proposed Otago Regional Policy Statement
2021 must continue to be prepared, and need not be re-notified under
the freshwater planning process in Subpart 4 of Part 5 and Part 4 of
Schedule 1 of the Resource management Act 1991.
4. Such or further order as the Court thinks fit.
[212] In its submissions, the ORC sought the declarations in 1 and 2. With this
judgment, the Court will not make those declarations. The ORC did not present
detailed submissions in support of the latter alternative declarations.
[213] Forest and Bird submitted that “the declaration sought by ORC” be declined.
They submitted only part of the proposed regional statement that related to freshwater
was the land and freshwater domain chapter. The balance of the proposed regional
statement, they submitted, had to go through the process in pt 1 of sch 1.
[214] Port Otago submitted that the response to questions formulated by the ORC
should be:
(a) The proposed regional statement is not a freshwater planning instrument.
It contains policies that do not relate to freshwater, including policies
relating to coastal water.
(b) The parts of the proposed regional statement that are not a freshwater
planning instrument are those parts which either:
(i) are not for the purpose of giving effect to a national policy statement
for freshwater management; or
(ii) do not otherwise relate to freshwater.
[215] Oceana Gold submitted the Court should make a declaration that the proposed
regional statement was a freshwater planning instrument under s 80A(2)(b) and not s
80A(2)(a), and should identify, as required by s 80A(3), those parts of the proposed
regional statement that relate to freshwater and are therefore to proceed under the
freshwater planning process, and those that do not must be progressed using the
standard process.
[216] The QLDC submitted the first and second declarations should be declined. It
submitted the third declaration should also be declined given the ORC had provided
no details on what statutory process would be followed.
[217] The Dunedin City Council and Waitaki District Council submitted that “the
declaration” sought by the ORC should not be issued. They submitted the Court could
declare that only the parts of the proposed regional statement which they had referred
to relate to freshwater, and the balance of the proposed regional statement needs to
follow the normal pt 1 of sch 1 procedure in the RMA for its development.
[218] Rayonier and Ernslaw submitted that declarations 1 and 2 should be declined.
They supported declaration 3 with the proviso that, if changes were to be made to the
part of the proposed regional statement that is a freshwater planning instrument, then
that must be publicly notified in accordance with s 80A(4)(a) of the RMA. If changes
are made to that part of the proposed regional statement that is not a freshwater
planning instrument, then that must be publicly notified in accordance with cl 5 of sch
1 of the RMA.
[219] Ngā Rūnanga submitted only declarations 1 and 2 should be made.
[220] The CRC, given its neutral position, said it was not making any submissions
as to the merits (or otherwise) on the declaration sought.
[221] The Minister, also adopting a neutral position, made no submissions as to what,
if any, declarations might be appropriate.
[222] The submissions as to declarations from a number of parties were premised on
the basis the Court would be deciding which parts of the proposed regional statement
related to freshwater and which did not. That task remains with the ORC.
[223] Advice to the ORC from its officers for the meeting where they considered the
status of the proposed regional statement and whether it should be publicly notified
was that “[w]hen the [proposed regional statement] is publicly notified, the public
notice must state whether Council [sic] is satisfied that the document is a freshwater
planning instrument. This dictates the process or processes used for hearing and
determining submissions on the document.”
[224] The proposed regional statement was publicly notified on Saturday 26 June
2021. The notice advised that submissions could be made but had to be received by
3.00 pm on 3 September 2021. Submissions were received from 1,463 parties. In her
affidavit, the manager of policy and planning for the ORC advised the primary
submissions covered “every aspect of the proposed regional statement” and there are
multiple parties who have submitted in support or opposition to the proposed regional
statement in its entirety.
[225] A summary of decisions requested was notified on 30 October 2021. A further
59 submissions were received as to the summary of decisions requested.
[226] On 11 November 2021, the ORC advised the Chief Freshwater Commissioner
of the names of its two nominees for appointment to the freshwater hearings panel.
On 17 December 2021, the Chief Freshwater Commissioner appointed four of the five
members of the freshwater hearings panel. The fifth member, the tangata whenua
nominee, was unavailable to be appointed at that time and was appointed on 17
January 2022.
[227] Section 80A(3) requires the ORC to prepare the parts that do not relate to
freshwater in accordance with pt 1 of sch 1. This process has time limits for steps that
have to be taken in the planning process. The ORC does have power to extend time
limits, as provided for in ss 37 and 37A of the RMA.
[228] In accordance with this judgment, only parts of the proposed regional statement
that are to be a freshwater planning instrument will be subject to the freshwater
planning process.
[229] The ORC will now have to reconsider and decide which parts of the proposed
regional statement relate to freshwater for the purposes of s 80A. Section 80A(3)(a)
requires that those parts must be prepared in accordance with subpt 4 of pt 5 and pt 4
of sch 1 of the RMA. Section 80A(4) requires the regional council to publicly notify
the freshwater planning instrument. The freshwater planning process begins with
public notification of the freshwater planning instrument.94
[230] There has been no valid determination as to which parts of the proposed
regional statement are parts of a freshwater planning instrument so there has been no
notification of a freshwater planning instrument to begin the freshwater planning
process set out in pt 4 of sch 1. Those parts of the proposed regional statement that
will not be part of a freshwater planning instrument have been publicly notified, and
do not need to be re-notified. They have not been processed in accordance with the
normal pt 1, sch 1 process because of the ORC’s decision to treat the whole of the
proposed regional statement as a freshwater planning instrument, and because of the
uncertainty associated with these proceedings.
[231] The declarations I make are as follows:
(a) The Otago Regional Council’s determination that the whole of the
proposed Otago Regional Policy Statement 2021 is a freshwater planning
instrument under s 80A(1)−(3) of the Resource Management Act 1991 was
in error and not in accordance with the requirements of s 80A.
(b) The Otago Regional Council must now satisfy itself as to which parts of
the proposed regional statement relate to freshwater and so constitute a
freshwater planning instrument through giving effect to the National
Policy Statement for Freshwater Management 2020 or otherwise relating
to freshwater.
(c) Following its determination as to that, the Otago Regional Council must
continue with the preparation of those parts of the plan that are not part of
the freshwater planning instrument, in accordance with the process set out
in pt 1, sch 1 of the RMA.
94 RMA, sch 1 cl 37.
(d) Those parts of the proposed regional statement that are determined by the
Otago Regional Council to be parts of a freshwater planning instrument
are to be publicly notified as a freshwater planning instrument, and are to
be subject to the freshwater planning process in subpt 4 of pt 5 and pt 4 of
sch 1 of the RMA 1991.
Costs
[232] The ORC brought these proceedings to obtain clarification from the Court as
to whether the basis on which it had determined the whole of its proposed regional
statement as being a freshwater planning instrument was in accordance with s 80A of
the RMA. They did this because of the acknowledged lack of clarity in the legislation
as to how it was to be applied. A number of the parties acknowledged the responsible
way the ORC had put the matter before the Court for consideration and did not seek
costs. The proceedings are such that costs should lie where they fall.
Concluding summary
[233] On 26 June 2021, the Otago Regional Council notified the whole of its
proposed regional statement as a freshwater planning instrument to be subject to the
freshwater planning process which became part of the RMA in 2020. It made this
determination to achieve integrated management of all natural resources and in
accordance with the concept of Te Mana o te Wai and ki uta ki tai in the National
Policy Statement for Freshwater Management that came into effect in September
2020. The council’s determination was supported by Otago iwi. It was challenged by
a number of district councils, Forest and Bird, Port Otago, Oceana Gold and two major
forestry companies.
[234] In this judgment I have held that, with the 2020 amendment to the Resource
Management Act, Parliament contemplated there would be dual planning processes as
to matters that the Otago Regional Council had to deal with in its proposed regional
statement. Only those matters that relate to freshwater would be subject to the
freshwater planning process with the more limited rights of appeal associated with
such a process.
[235] With the legislation, there is uncertainty as to what “relates to freshwater”
means and thus uncertainty as to which parts of the proposed regional statement could
be a freshwater planning instrument and so subject to the freshwater planning process.
[236] In this judgment I have held it is only those parts of the proposed regional
statement that relate directly to the maintenance or enhancement of freshwater quality
or quantity that can be treated as parts of a freshwater planning instrument. The whole
proposed regional statement could not be treated as a freshwater planning instrument
and so subject to the freshwater planning process on the basis this was necessary to
achieve integrated management of resources or recognition of Te Mana o te Wai and
ki uta ki tai. There was thus an error of law in the Otago Regional Council deciding
that the whole of its recently notified proposed regional statement was a freshwater
planning instrument to be dealt with under the freshwater planning process.
[237] The Otago Regional Council had notified the whole of its proposed regional
policy statement in the manner required by the RMA. There have been a great number
of submissions to the regional council about many aspects of the regional policy
statement. I have held that the council need not renotify those parts of its proposed
regional statement which, on reconsideration in accordance with this judgment, it
decides are not parts of a freshwater planning instrument. Those parts will be subject
to the normal planning process provided by the RMA with existing rights of appeal to
the Environment Court.
[238] The Court has made declarations that:
(a) the Otago Regional Council’s determination, that the whole of its proposed
regional policy statement was a freshwater planning instrument, was in
error;
(b) the Otago Regional Council must now reconsider the proposed regional
policy statement and decide which parts of it do relate to freshwater in the
way the legislation requires for those parts to be subject to the freshwater
planning process; and
(c) the Otago Regional Council will then have to notify those parts of the
proposed regional statement which are to be treated as a freshwater
planning instrument and begin again the freshwater planning process as to
those parts.
Solicitors:
Ross Dowling Marquet Griffin, Dunedin
P D Anderson, Royal Forest and Bird Protection Society of New Zealand
L A Andersen QC, Barrister, Dunedin
P E M Walker, Environment Law, Dunedin
S W Christensen, Barrister, Dunedin
M R Garbett and R A Kindiak, Anderson Lloyd, Dunedin
J M Derry, Ministry for the Environment, Wellington
R G Muston, Crown Law Office
P A C Maw, Wynn Williams, Christchurch
K T Dickson, Wynn Williams, Christchurch
S J Scott, Simpson Grierson, Christchurch
S R Gepp, Barrister, Nelson
K L Hockly, Lane Neave, Queenstown-Lakes
M A Baker-Galloway, Anderson Lloyd, Queenstown-Lakes.
From:
Hearings Administrator <[email address]>
Sent:
Tuesday, 26 July 2022 9:07 am
To:
Hearings Administrator
Subject:
PORPS Memorandum on Behalf of the ORC for the Freshwater Hearings Panel
dated July 25th 2022
Attachments:
2022-07-25 - ORC Memorandum for Hearings Panel.pdf
Morena,
Please find the Memorandum on Behalf of the ORC for the Freshwater Hearings Panel attached.
Thank you.
Regards,
Hearings Administrator
[email address]
1
BEFORE THE FRESHWATER HEARINGS PANEL CONVENED BY THE CHIEF
FRESHWATER COMMISSIONER
IN THE MATTER
of the Proposed Otago Regional Policy Statement
2021
MEMORANDUM ON BEHALF OF THE OTAGO REGIONAL COUNCIL
Dated 25 July 2022
ROSS DOWLING MARQUET GRIFFIN
Telephone:
(03) 477 8046
SOLICITORS
Facsimile:
(03) 477 6998
DUNEDIN
PO Box 1144, DX YP80015
Solicitor: SJ Anderson
SJA-266090-1095-316-V1
MEMORANDUM ON BEHALF OF THE OTAGO REGIONAL COUNCIL
May it please the Panel:
High Court Judgment
1
The High Court has given its judgment in the declaratory judgment
proceedings concerning this freshwater planning process.
2
The judgment is
attached.
3
At paragraph [231] of the judgment the Court has made declarations as
follows:
(a)
The Otago Regional Council’s determination that the whole of the
proposed Otago Regional Policy Statement 2021 is a freshwater planning
instrument under s 80A(1)−(3) of the Resource Management Act 1991 was
in error and not in accordance with the requirements of s 80A.
(b)
The Otago Regional Council must now satisfy itself as to which parts of
the proposed regional statement relate to freshwater and so constitute a
freshwater planning instrument through giving effect to the National Policy
Statement for Freshwater Management 2020 or otherwise relating to
freshwater.
(c)
Following its determination as to that, the Otago Regional Council must
continue with the preparation of those parts of the plan that are not part of
the freshwater planning instrument, in accordance with the process set out
in pt 1, sch 1 of the RMA.
(d)
Those parts of the proposed regional statement that are determined by the
Otago Regional Council to be parts of a freshwater planning instrument
are to be publicly notified as a freshwater planning instrument, and are to
be subject to the freshwater planning process in subpt 4 of pt 5 and pt 4 of
sch 1 of the RMA 1991.
Consequences
4
The judgment has immediate effect, notwithstanding that it may be
appealed.
5
The freshwater planning process before this Panel is therefore at an end.
6
The constitution of this Panel is also at an end.
Page
2 of
3
7
After declaration (d) is implemented by Otago Regional Council the
resulting freshwater planning documents wil need to be submitted to the
Chief Freshwater Commissioner afresh, and a new freshwater hearings
panel wil then need to be convened.
Submission
8
Otago Regional Council submits that it would be appropriate for the Panel
to issue a minute to the submitters recording:
8.1
the declarations made by the High Court; and
8.2
that this freshwater planning process, and the constitution of the
Panel, is at an end.
The Non-Freshwater Parts of the PRPS
9
After Otago Regional Council has determined which parts of the proposed
regional policy statement relate to freshwater it wil contact submit ers
regarding continuation of the process under Part 1 of Schedule 1 of the
RMA for the remainder of the proposed regional policy statement.
Simon Anderson
Counsel for Otago Regional Council
25 July 2022
Page
3 of
3
IN THE HIGH COURT OF NEW ZEALAND
DUNEDIN REGISTRY
I TE KŌTI MATUA O AOTEAROA
ŌTEPOTI ROHE
CIV-2021-412-000089
[2022] NZHC 1777
BETWEEN
OTAGO REGIONAL COUNCIL
Plaintiff
AND
ROYAL FOREST AND BIRD
PROTECTION SOCIETY OF NEW
ZEALAND INCORPORATED
Defendant
Hearing:
8 February 2022
Appearances:
A J Logan for the Otago Regional Council
P D Anderson and M Downing for Royal Forest and Bird
Protection Society of New Zealand Inc
L A Andersen QC for Port Otago Limited
P E M Walker and S W Christensen for Oceana Gold (New
Zealand) Ltd
M R Garbett and R A Kindiak for Dunedin City Council and
Waitaki District Council
R H Dixon for Minister of the Environment
K T Dickson for Canterbury Regional Council
S J Scott for Queenstown Lakes District Council and Central
Otago District Council
S R Gepp for Rayonier Matariki Forests Limited and Ernslaw One
Limited
K L Hockly for Te Rūnanga o Ngāi Tahu
M A Baker-Galloway for Otago Fish & Game Council –
appearance excused
Judgment:
22 July 2022
JUDGMENT OF NATION J
OTAGO REGIONAL COUNCIL v ROYAL FOREST AND BIRD PROTECTION SOCIETY OF NEW
ZEALAND INCORPORATED [2022] NZHC 1777 [22 July 2022]
Introduction
3
Background
14
The relevant legislation
27
Integrated management, the fundamental concept of Te Mana o te Wai
and ki uta ki tai
28
Submissions in support of the whole of the proposed regional statement
being a freshwater planning instrument.
35
Otago Regional Council
35
Ngā Rūnanga
53
Canterbury Regional Council
63
Submissions of parties who argued the ORC’s decision that the proposed
regional statement, as a whole, was a freshwater planning instrument
was not open to it on a correct interpretation of s 80A of the RMA
74
The Minister for the Environment
75
Forest and Bird
78
Oceana Gold
80
Port Otago Ltd
86
Dunedin City Council and Waitaki District Council
88
Central Otago District Council and Queenstown Lakes District Council
95
Rayonier Matariki Forest Ltd and Ernslaw One Ltd
105
The interpretation of s 80A of the RMA
108
Legal principles
108
Why the meaning of the legislation is not clear
111
Legislative process
117
Interpretation of s 80A
148
Conclusion as to how s 80A must be read
165
Why the ORC’s interpretation and application of s 80A of the RMA was
in error
169
The Court’s task
173
The Court’s view as to how the words “relates to freshwater” are to be
interpreted and applied
183
What, if any, declarations should be made in light of the earlier
conclusions in this judgment?
211
Costs
232
Concluding summary
233
[1]
In 2020, through an amendment to the Resource Management Act 1991
(RMA), Parliament introduced a new freshwater planning process for regional plans
or policy statements, or parts of them, that are freshwater planning instruments as
defined in the Act.
[2]
Through these proceedings, the Court must decide whether there was an error
of law in the Otago Regional Council (ORC) deciding that the whole of its proposed
regional statement was a freshwater planning instrument and so subject to the
freshwater planning process.
Introduction
[3]
The purpose of the RMA is to promote the management of the use,
development and protection of natural and physical resources to enable people and
communities to provide for their social, economic and cultural wellbeing and for their
health and safety while protecting the environment.1
[4]
Under the RMA, the Minister for the Environment can and has issued national
policy statements stating objectives and policies for matters of national significance
relevant to achieving the purpose of the RMA.2 Territorial authorities, including
regional councils3 and district councils, must consider and give effect to those
statements in preparing their policy statements and plans.4
[5]
Regional councils must have a regional policy statement in accordance with
their functions under s 30 of the RMA and other RMA provisions.5 The purpose of a
regional policy statement is to achieve the purpose of the RMA by providing an
overview of the resource management issues of the region and policies and methods
to achieve integrated management of the natural and physical resources of the whole
region.6
1
Resource Management Act 1991 [RMA], s 5.
2
Sections 45 and 45A.
3
A number of unitary authorities also have the functions of both regional councils and district
councils. When referring to regional councils, I am also referring to unitary authorities insofar as
they are exercising regional council functions.
4
RMA, ss 62(3), 67(3)(a) and 75(3)(a).
5
Sections 60 and 61.
6
Section 59.
[6]
The functions of regional councils include:
(a) preparation of objectives and policies as to any actual or potential effects
of the use, development or protection of land which are of regional
significance;7
(b) preparation of objectives and policies to ensure there is sufficient
development capacity in relation to housing and business lands to meet the
expected demands of the region;8
(c) control of the use of land for the purpose of maintaining and enhancing
the quality and quantity of water in water bodies and coastal water;9 and
(d) control of discharges of contaminants into or onto land, air or water and
discharges of water into water.10
[7]
District councils must have district plans to assist them in carrying out their
functions in order to achieve the purpose of the RMA.11 They are required to give
effect to national planning documents and any regional policy statement, and have
regard to proposed regional policy statements.12
[8]
Under the RMA, interested parties can make submissions to regional councils
as to proposed regional statements. Councils can then decide what should be in their
regional statements.13 Submitters who are dissatisfied with the regional council’s
decision can appeal to the Environment Court.14 This is a specialist tribunal with
expertise as to environmental and planning issues. The Environment Court can then
consider the issues afresh with all the same powers the regional council had.15 The
parties to an appeal to the Environment Court have rights of appeal to the High Court
but only as to errors of law.16
7
Section 30(1)(b).
8
Section 30(1)(b)(a).
9
Section 30(1)(c)(ii) and (iii).
10 Section 30(1)(f).
11 Section 72.
12 Sections 75(3)(c) and 74(2)(a).
13 Schedule 1 cl 10.
14 Schedule 1 cl 14.
15 Section 290(1).
16 Section 299.
[9]
On 1 July 2020, through the Resource Management Amendment Act 2020 (the
Amendment Act), the RMA was amended to establish a new freshwater planning
process to deal with freshwater issues in regional plans and policy statements.
[10] The Amendment Act required submissions on freshwater issues to be
considered by a separate freshwater hearings panel. That panel then makes
recommendations to a regional council. The regional council can accept or reject any
recommendation.17 Submitters have a right of appeal to the Environment Court but
only if the recommendation of the freshwater hearings panel has not been accepted.18
Submitters can appeal to the High Court if the regional council accepted the
recommendation of the freshwater planning hearings panel but only on questions of
law.19
[11] The Minister for the Environment issued a national policy statement for
freshwater management in 2014. This was amended in 2017. The purpose and effect
of that statement is to require territorial authorities, including regional and district
councils, to improve their management of and carry out their functions to improve the
quality of freshwater in all parts of New Zealand/Aotearoa.20
[12] In September 2020, that National Policy Statement was replaced by the
National Policy Statement for Freshwater Management 2020 (National Freshwater
Policy).
[13] In 2021, the ORC notified that it had prepared a new Proposed Otago Regional
Policy Statement June 2021 (proposed regional statement) and had decided the whole
of the statement was a freshwater planning instrument so had to be subject to the
freshwater planning process.
17 Resource Management Amendment Act 2020 [Amendment Act], s 22; RMA, s 80A.
18 Amendment Act, s 103(3); RMA, sch 1 cl 55.
19 Amendment Act, s 103(3); RMA, sch 1 cl 56.
20 As seen in the preamble to the National Policy Statement for Freshwater Management 2014
(amended 2017) at 4.
Background
[14] On 1 October 2019, Professor Peter Skelton produced a report for the Minister
for the Environment reviewing the freshwater management and allocation functions at
the ORC.
[15] On 18 November 2019, the Minister for the Environment, under s 24A of the
Act, recommended the ORC undertake a complete review of its regional policy
statement with the intention that it be made operative by 31 December 2023. The
ORC accepted that recommendation and embarked on the significant task of reviewing
its partially operative regional policy statement.
[16] The National Planning Standards of November 2019 require a regional policy
statement to have chapters and sections on various subjects including integrated
management, land and freshwater, tangata whenua/mana whenua, air, coastal
environment, energy infrastructure and transport, and historical and cultural values.
[17] On 1 July 2020, through the Amendment Act, Parliament introduced a new
subpt 4 of pt 5 of the RMA. The amendments provided for the separate planning
process for proposed regional statements that give effect to any national policy
statement for freshwater management and/or that relate to freshwater. Such a
document is described in subpt 4 as a freshwater planning instrument.
[18] The National Freshwater Policy took effect on 3 September 2020. It
established Te Mana o te Wai as its fundamental concept. This concept refers to the
fundamental importance of water and recognises that protecting the health of
freshwater protects the health and wellbeing of the wider environment. The objectives
of the National Freshwater Policy include, first, ensuring natural and physical
resources are managed in a way that prioritises the health and wellbeing of water
bodies and freshwater ecosystems.21 Amongst other matters, regional councils are
required to adopt an integrated approach, ki uta ki tai, as required by Te Mana o te Wai
to recognise the interconnectedness of the whole environment.22 Every regional
21 National Policy Statement for Freshwater Management 2020 [National Freshwater Policy], pt 2,
objective 2.1.
22 Clause 3.5.
council must make or change its regional policy statement to the extent needed to
provide for the integrated management of the effects of the use and development of
land on freshwater and on receiving environments.23
[19] On 11 September 2020, the Minister for the Environment wrote to the ORC.
He recognised the significant progress it had made in acting on his earlier
recommendation but agreed to an extension to allow the ORC to have regard to the
National Freshwater Policy.
[20] On 16 June 2021, the proposed regional statement was presented to the ORC.
With the proposed statement was a detailed evaluation report prepared under s 32 of
the RMA. The report identified that “[t]he integrated management of the natural and
physical resources of the Otago region is at the heart of the planning approach to
resource management, as expressed in the [proposed regional statement]”.
[21] At its meeting on 16 June 2021, the ORC confirmed that the whole of the
proposed regional statement was a freshwater planning instrument as defined in s
80A(2) of the RMA.
[22] On 24 June 2021, the defendant (Forest and Bird) wrote to the ORC. They
said:
In principle we support the desire and need for more integrated management.
However, the wording of s 80A (3) of the RMA is quite clear that only the
parts of freshwater instruments that relate to freshwater can go through the
freshwater planning process. That’s what it’s designed for.
[23] While Forest and Bird supported moves to improve the proposed regional
statement, especially with regard to freshwater, they considered there was a risk that:
… due to an inadequate and arguably unlawful process, the [proposed regional
statement] in its entirety could be successfully appealed at the end of the
process by parties who are not happy with it. This would mean a waste of a
huge amount of time, money and effort by everyone who engages in it.
[24] The ORC publicly notified the proposed regional statement on 26 June 2021.
The notice said the entirety of the proposed regional statement was a freshwater
23 National Freshwater Policy, cl 3.5(2).
planning instrument and therefore subject to the freshwater planning process. The
notice also called for submissions, which were due by 3.00 pm on 3 September 2021.
[25] On 3 September 2021, the ORC filed an application under the Declaratory
Judgments Act 1908 for a number of declarations. I refer to these in detail later in the
judgment.24 First and foremost, the ORC sought a declaration that the whole of the
proposed regional statement is a freshwater planning instrument.
[26] On 21 September 2021, Associate Judge Paulsen directed the proceedings be
served on all primary submitters to the proposed regional statement and there be public
notice of the proceedings in the Otago Daily Times. The parties heard in these
proceedings were those who filed statements of defence or notices of appearance for
ancillary purposes.
The relevant legislation
[27] Section 80A of the RMA states:
80A Freshwater planning process
(1) The purpose of this subpart is to require all freshwater planning
instruments prepared by a regional council to undergo the freshwater
planning process.
(2) A
freshwater planning instrument means—
(a) a proposed regional plan or regional policy statement for the purpose
of giving effect to any national policy statement for freshwater
management:
(b) a proposed regional plan or regional policy statement that relates to
freshwater (other than for the purpose described in paragraph (a)):
(c) a change or variation to a proposed regional plan or regional policy
statement if the change or variation—
(i) is for the purpose described in paragraph (1); or
(ii) otherwise relates to freshwater.
(3) A regional council must prepare a freshwater planning instrument in
accordance with this subpart and Part 4 of Schedule 1. However, if the
council is satisfied that only part of the instrument relates to freshwater,
the council must—
24 See [211] below.
(a) prepare that part in accordance with this subpart and Part 4 of
Schedule 1; and
(b) prepare the parts that do not relate to freshwater in accordance with
Part 1 of Schedule 1 or, if applicable, subpart 5 of this Part.
(4) A regional council must—
(a) publicly notify the freshwater planning instrument; and
(b) if the purpose of the freshwater planning instrument is to give effect
to the National Policy Statement for Freshwater Management 2020,
publicly notify the freshwater planning instrument by 31 December
2024; and
(c) no later than 6 months after it has publicly notified the freshwater
planning instrument, submit the documents required by clause 37(1)
of Schedule 1 (the
required documents) to the Chief Freshwater
Commissioner; and
(d) at least 20 working days before submitting the required documents,
provide to the Chief Freshwater Commissioner in writing—
(i) its notice of intention to submit those documents; and
(ii) the regional council and local tangata whenua nominations for
appointment to the freshwater hearings panel required by clause
59(1)(b) and (c) of Schedule 1.
…
(8) In subsection (2), a proposed regional plan does not include a proposed
regional coastal plan or a change or variation to that plan.
…
Integrated management, the fundamental concept of Te Mana o te Wai and ki uta
ki tai
[28] The way the ORC gave effect to integrated management, Te Mana o te Wai and
ki uta ki tai was integral to their decision to treat the whole of the proposed regional
statement as a freshwater planning instrument.
[29] A regional council’s functions under s 30(1)(a) of the RMA include the
establishment, implementation and review of objectives, policies and methods to
achieve integrated management of the natural and physical resources of the region.
[30] The purpose of a regional policy statement includes achieving integration
across policies so that, for example, policy or decisions on water issues should be made
in conjunction with policy on land matters that affect water or links that might need to
be made to the policy on natural hazards.25
[31] The fundamental concept of Te Mana o te Wai is described in the National
Freshwater Policy as follows:
1.3 Fundamental concept – Te Mana o te Wai
Concept
(1) Te Mana o te Wai is a concept that refers to the fundamental importance
of water and recognises that protecting the health of freshwater protects
the health and well-being of the wider environment. It protects the mauri
of the wai. Te Mana o te Wai is about restoring and preserving the balance
between the water, the wider environment, and the community.
(2) Te Mana o te Wai is relevant to all freshwater management and not just
to the specific aspects of freshwater management referred to in this
National Policy Statement.
[32] Subpart 1 of pt 3 of the National Freshwater Policy sets out approaches to
implementing the National Freshwater Policy.
[33] In that regard, every regional council must engage with communities and
tangata whenua to determine how Te Mana o te Wai applies to water bodies and
freshwater ecosystems in the region.26 To implement and give effect to Te Mana o te
Wai, regional councils must also adopt an integrated approach, ki uta ki tai, to the
management of freshwater.27
[34] Clause 3.5 of the National Freshwater Policy states:
3.5 Integrated management
(1) Adopting an integrated approach, ki uta ki tai, as required by Te Mana o
te Wai, requires that local authorities must:
(a) recognise the interconnectedness of the whole environment, from
the mountains and lakes, down the rivers to hāpua (lagoons), wahapū
(estuaries) and to the sea; and
25 As discussed in Derek Nolan
Environmental and Resource Management Law, (7th ed, LexisNexis,
Wellington, 2020) at [2.5]; and as illustrated by the decision of the Environment Court in
Clutha
District Council v Otago Regional Council [2020] NZEnvC 194; upheld by the High Court in
Clutha District Council v Otago Regional Council [2022] NZHC 510.
26 National Freshwater Policy, cl 3.2(1).
27 Clause 3.2(2)(e).
(b) recognise interactions between freshwater, land, water bodies,
ecosystems, and receiving environments; and
(c) manage freshwater, and land use and development, in catchments in
an integrated and sustainable way to avoid, remedy, or mitigate
adverse effects, including cumulative effects, on the health and well-
being of water bodies, freshwater ecosystems, and receiving
environments; and
(d) encourage the co-ordination and sequencing of regional or urban
growth.
(2) Every regional council must make or change its regional policy statement
to the extent needed to provide for the integrated management of the
effects of:
(a) the use and development of land on freshwater; and
(b) the use and development of land and freshwater on receiving
environments.
(3) In order to give effect to this National Policy Statement, local authorities
that share jurisdiction over a catchment must co-operate in the integrated
management of the effects of land use and development on freshwater.
(4) Every territorial authority must include objectives, policies, and methods
in its district plan to promote positive effects, and avoid, remedy, or
mitigate adverse effects (including cumulative effects), or urban
development on the health and well-being of water bodies, freshwater
ecosystems, and receiving environments.
Submissions in support of the whole of the proposed regional statement being a
freshwater planning instrument.
Otago Regional Council
[35] Mr Logan for the ORC summarised the ORC’s position as follows:
The [proposed regional statement] is, in its entirety, a freshwater planning
instrument. That statement seems counterintuitive. A regional policy
statement must cover many subjects. But when [the proposed regional
statement] is carefully considered, freshwater is woven into its fabric. There
is no severable part which neither gives effect to the [National Freshwater
Policy] nor relates to freshwater in some other way.
[36] The ORC was advised that two issues arose for it to consider in deciding
whether it was satisfied the proposed regional statement (as a whole or in part) could
be a freshwater planning instrument:
First, does the proposed regional statement give effect to any [National
Freshwater Policy]; and secondly, does the proposed regional statement relate
to freshwater?
[37] The ORC was advised that significant parts of the proposed regional statement:
… are clearly able to be classified as a freshwater planning instrument, either
because they are designed to give effect to a national policy statement for
freshwater, or because they are a matter that relates to freshwater. For other
parts it is less straightforward.
[38] The ORC was advised the proposed regional statement as a whole should be
considered a freshwater planning instrument to recognise the fundamental philosophy
of the RMA of integrated management and the concept of ki uta ki tai. The integrated
management chapter of the proposed regional statement was drafted so conflicts
between demands for resources could be resolved with an interconnected approach.
[39] The report to the ORC purported to summarise the consequences of not
recognising the proposed regional statement in its entirety as a freshwater planning
instrument. That summary suggested the overall integrity of the statement would
likely be undermined if there were two parallel hearing processes with differently
constituted hearing panels. Having two panels would result in delays and would not
achieve the best environmental outcome for Otago. The authors of the report
considered the proposed plan should be managed post-notification as a single
integrated planning instrument.
[40] In essence, the recommendation to the ORC was that the whole of the proposed
regional statement should be treated as a freshwater planning instrument because this
would be conducive to managing natural and physical resources in an integrated way;
it would recognise that freshwater, in rivers, underground, in the air and in the ocean,
is connected and what occurs in the headwaters and on land will have an impact in the
ocean. The report stated that “[t]he integrated management of the natural and physical
resources was at the heart of the planning approach to resource management in Otago
as expressed in the [proposed regional statement]”.
[41] In its public notification of the proposed statement, the ORC said the proposed
regional statement:
… is considered to meet the requirements of Section 80A(2)(a) and 80A(2)(b)
of the Resource Management Act 1991 because the Chapters of the [proposed
regional statement] are either giving effect to any national policy for
freshwater management or relate to freshwater.
[42] The notice also stated that the purpose of the RMA of promoting the
sustainable management of natural and physical resources could only be achieved
through an integrated approach to the task of managing those resources. The proposed
regional statement had been prepared to achieve that outcome. To not have it
considered a freshwater planning instrument would be to defeat that purpose.
[43] The ORC submitted:
(a) A freshwater planning instrument includes a planning document which
gives effect to the National Freshwater Policy including the fundamental
concept of Te Mana o te Wai. The sole objective of the National
Freshwater Policy is “to ensure that natural and physical resources are
managed in a way that gives effect to those priorities”.28 “Natural and
physical resources” is defined in s 2 of the RMA as including “land, water,
air, soil, minerals, and energy, all forms of plants and animals (whether
native to New Zealand or introduced), and all structures”.
(b) Clause 3.5 of the National Freshwater Policy required the ORC to manage
freshwater in an integrated way.29
(c) Accordingly, the threshold for the proposed regional statement to qualify
as a freshwater planning instrument could be met if the whole of it was for
the purpose of giving effect to the National Freshwater Policy. It does so
because of the way it achieves integrated management and gives effect to
ki uta ki tai and Te Mana o te Wai.
(d) “To give effect to”, as referred to in s 80A(2), means to implement.30
28 National Freshwater Policy, objective 2.1.
29 See [34] above.
30 With reference to
Environmental Defence Society Inc v The New Zealand King Salmon Co Ltd
[2014] 1 NZLR 593, [2014] NZSC 38 at [77].
(e) Section 80A(2)(a) and (b) contemplate that the whole of a proposed
regional plan or policy statement may be a freshwater planning instrument.
The only way Parliament could have contemplated such an outcome was
through understanding that this could be appropriate, adopting the
integrated management approach to planning.
(f) The second threshold for the proposed regional statement to be treated as
a freshwater planning instrument is if it “relates to freshwater” as stated in
s 80A(2)(b). The words “relates to” are not qualified. Reading in a
qualifier is not permissible. The words bear their natural and ordinary
meaning. A connection to freshwater is sufficient.31
(g) In response to submissions from Port Otago that the coastal environment
chapter was not capable of relating to freshwater, the ORC submitted it
was. The National Freshwater Policy states:32
This National Policy Statement applies to all freshwater (including
groundwater) and, to the extent they are affected by freshwater, to
receiving environments (which may include estuaries and the wider
coastal marine area).
(h) The ORC submitted coastal waters are a receiving environment for
freshwater and for the contaminants carried by freshwater. The ORC also
submitted the chapter both implements the National Freshwater Policy and
is related to freshwater because of the need for integrated management and
to give effect to ki uta ki tai.
(i) If links could be made between the freshwater chapter of the proposed
regional statement and other specific resource management chapters,
namely, air, management of infrastructure and transport resources, and
parts of historical and cultural values, natural features and landscapes, and
urban form and development, then those chapters relate to freshwater.
(j) Section 80A(3) simply recognises there may be freshwater planning
instruments that only partially relate to freshwater.
31 With reference to the definition in the
Oxford Learner’s Dictionary: “relate” Oxford Learner’s
Dictionary <www.oxfordlearnersdictionaries.com>.
32 National Freshwater Policy, cl 1.5.
[44] The ORC acknowledged that its decision as to whether the proposed regional
statement or parts of it were a freshwater planning instrument was not conclusive. The
correctness of its decision is a question of law to be determined by applying s 80A,
properly construed. It thus said a detailed consideration of the regional planning
statement was required to see whether there was some distinct part which does not
give effect to the National Freshwater Policy or which does not relate to freshwater.
[45] The ORC then addressed in detail the various chapters in the proposed regional
statement. The proposed regional statement separated into various chapters with
chapters on air, coastal environment including a section on the coastal marine area,
geothermal, and land and freshwater. The ORC said this structure was required by the
National Planning Standards 2019 as required by ss 61(1)(da) and 62(3) of the RMA.
It submitted adherence with the standards tended to create the appearance of subject
matter silos with seemingly discrete treatment of individual topics. This superficially
concealed the way in which freshwater was integrated into all parts of the proposed
regional statement.
[46] The ORC drew attention to specific references to freshwater in those various
chapters but also other statements that, it submitted, were connected to freshwater
which meant they should be regarded as giving effect to the National Freshwater
Policy or as being related to freshwater. Mr Logan also acknowledged there were parts
that did not refer to freshwater. For instance, he noted there were many definitions in
the definition section that do not relate to freshwater, but some do.
[47] As an example of a provision related to freshwater, the ORC referred to the
proposed regional statement identifying one of the issues for the region as being:
Poorly managed urban and residential growth affects productive land,
treasured natural assets, infrastructure and community well-being. Demand
for the supply of water, adverse effects on waterways and disposal of
contaminants to water are described as potential adverse effects.
[48] As another example, it discussed the chapter on air. The ORC submitted water
means water in all its physical forms.33 This definition encompasses water vapour.
33 RMA, s 2.
Water vapour is a contaminant when discharged to air. The discharge of contaminants
to air is regulated by the RMA. It said discharges to air can have adverse effects on
receiving environments, including freshwater, for example through spray drift. The
regional statement stipulates for controls to manage these effects so provisions in this
chapter contribute to implementing the National Freshwater Policy and relate to
freshwater.
[49] As to the coastal environment, the ORC said freshwater does relate to the
coastal environment because the coastal environment extends landward of the coastal
marine area and includes freshwater bodies, rivers, lakes, wetlands, aquifers and
springs. The proposed regional policy describes how coastal waters are a receiving
environment for freshwater gravel, sediment and other contaminants from terrestrial
activities.
[50] In the chapter as to transport, the ORC said the first objective is an integrated
air, land and sea transport network that is effective, efficient and safe, connects
communities and activities, and is resilient to natural hazards. It submitted this chapter
triggers the application of infrastructure provisions in the proposed regional statement
which implement the National Freshwater Policy because there are freshwater hazards
that threaten the resilience of the transport systems and public transport can include a
service for the carriage of passengers by vehicle, rail or ferry.
[51] In responding to submissions from other parties, the ORC submitted the words
“relates to freshwater” embraces provisions that relate to freshwater “but are focused
on outcomes broader than just freshwater”. It submitted that outcome is not surprising.
Freshwater underpins life. To promote sustainable management and achieve
integrated management of natural and physical resources, it is necessary to make, at
every step, decisions which relate to freshwater.
[52] Mr Logan said, if there had to be a qualification on the phrase “relates to”, the
most preferable qualification would require a cause or connection to freshwater in the
manner submitted in accordance with the submissions made for the Waitaki District
and Dunedin City Councils.
Ngā Rūnanga
[53] Submissions were made on behalf of Te Rūnanga o Moeraki, Kāti Huirapa
Rūnaka ki Puketeraki, Te Rūnanga o Ōtākou and Hokonui Rūnanga, and Te Rūnanga
o Ngāi Tahu (collectively Ngā Rūnanga). Te Rūnanga o Ngāi Tahu is the statutorily
recognised representative tribal body of Ngāi Tahu Whānui. The others are four of the
18 Papatipu Rūnanga of Ngāi Tahu Whānui that are statutorily recognised under the
Te Rūnanga o Ngāi Tahu Act 1996 and are mana whenua within the Otago region.
[54] Ngā Rūnanga supported the ORC’s position. Ngā Rūnanga summarised their
position in these proceedings as being to ensure appropriate provision is made for the
recognition of the relationship of Ngāi Tahu Whānui with their ancestral lands, waters
and other taonga in the process of the hearing and decision-making on the proposed
regional statement. They said this is to be achieved by way of an integrated approach
to management of the Otago regions resources under the RMA.
[55] Ngā Rūnanga made the following submissions:
(a) The proposed regional statement met the definition of a freshwater
planning instrument because it is a regional planning statement for the
purpose of giving effect to a national policy statement for freshwater
management. Correctly interpreted, the words “relates to freshwater” in s
80A(3) could encompass all parts of freshwater planning instruments that
are for the purpose of giving effect to the National Freshwater Policy.
(b) The ORC correctly interpreted s 80A(3) when it came to the view that the
entirety of the proposed regional statement relates to freshwater in the
context of:
(i) the history of the reviews that had led to the proposed regional
statement;
(ii) the directions in the National Freshwater Policy; and
(iii) the ORC’s duty to take an integrated planning approach under the
RMA.
(c) This interpretation would best give effect to Parliament’s intention as it
would allow all parts of regional policy statements and plans that are for
the purpose of giving effect to the National Freshwater Policy to be
included in the streamlined freshwater planning process, so as to enable
the relevant councils to give effect to the National Freshwater Policy fully
and quickly.
(d) This interpretation would also give effect to provisions of the RMA that
provide for the integrated management of the natural and physical
resources of the region. The National Freshwater Policy recognises the
importance of integrated management through Te Mana o te Wai and ki
uta ki tai.
(e) The Environment Committee report on the Resource Management
Amendment Bill 2019 made it clear that the intent of the freshwater
planning process was to assist regional and unitary councils to meet the
deadline for implementing the requirements of the National Freshwater
Policy. The process was intended to achieve this purpose through
implementing a streamlined one-step process with limited rights of appeal.
(f) The implication of Forest and Bird’s interpretation of s 80A(3) would be
that decision-making on the proposed regional statement would become
fragmented, making it more difficult for the ORC to achieve the freshwater
outcomes required by the National Freshwater Policy.
(g) The freshwater hearings panel includes two persons nominated by the
relevant regional council and one person nominated by local tangata
whenua. The panel would have the ability and expertise to ensure there is
a proper hearing of all submissions as to the proposed regional statement
under the freshwater planning process, particularly because expert
evidence and reports could be part of the process.
(h) There was an expressed intention for the proposed regional statement to
give effect to the National Freshwater Policy in the council officer’s report
of 6 June 2021 and s 32 report. These set out why the ORC considered
the proposed regional statement gives effect to the National Freshwater
Policy. Ngā Rūnanga acknowledged the proposed regional statement
gives effect to other national policy statements but submitted this did not
prevent the proposed regional statement from falling within the definition
of a freshwater planning instrument in s 80A(2)(a) of the RMA.
(i) The use of the word “satisfied” in s 80A(3) conferred a merits decision on
the relevant council. It was for the ORC to review the freshwater planning
instrument and satisfy itself whether only parts of it relate to freshwater or
whether the instrument relates to freshwater in its entirety. Once it was
established the ORC had carried out an assessment of the proposed
regional statement and come to the view it was satisfied the proposed
regional statement relates to freshwater in its entirety, the merits of that
decision could not be the subject of declaration proceedings.
[56] Ngā Rūnanga’s position was supported by an affidavit from Edward Weller
Ellison, Upoko of Te Rūnanga o Ōtākou.
[57] In his affidavit Mr Ellison spoke with obvious authority but also as someone
whose identity and whakapapa are closely tied to the Otago region, ki uta ki tai, from
the mountains to the sea. He spoke of the Kāi Tahu understanding of the central
importance of wai Māori (freshwater) and its interconnectedness to the other parts to
te taiao (the natural world), and the importance of mana whenua involvement in
decision making about wai māori and te taiao more broadly.
[58] Mr Ellison said Kāi Tahu ki Otago has consistently advocated for a more
holistic and integrated approach to planning that recognises the connections between
land, freshwater, coastal waters and indigenous biodiversity, and for better recognition
of the relationship of Kāi Tahu o te taiao. He spoke to the importance of rakatirataka
(having the mana/authority to give effect to Kāi Tahu culture in the management of
the natural world) and kaitiakitaka (the right and responsibility to care for the
environment passed through generations) to Te Mana o te Wai for Kāi Tahu.
[59] Mr Ellison said the narrow approach that had been taken to freshwater
management in Otago had led to the profound loss of mahika kai resources due to the
drainage of wetlands, and the degrading of the quality of wetlands, rivers, estuaries,
harbours and coastal demands.
[60] Sandra Jean McIntyre is an experienced planner. She had a leading role in
providing input on behalf of Kāi Tahu ki Otago to the proposed regional statement. In
her affidavit, she agreed with the ORC that the proposed regional statement as a whole
gives effect to the National Freshwater Policy or relates to freshwater planning. She
considered the proposed regional statement had to be an “integrated package” to be
effective. She considered there would be a real risk it would not be an “integrated
package” if there was a segregated decision-making process, where different parts of
the proposed regional statement would be considered through different processes and
at different times.
[61] Ms McIntyre considered “there are clear connections to freshwater planning
throughout the [proposed regional statement]”. She had not undertaken a
comprehensive review of all provisions in the proposed regional statement but gave
examples of connections to freshwater planning across the proposed regional
statement.
[62] Ngā Rūnanga thus supported the ORC’s application for declarations that the
ORC had decided correctly that the whole of the proposed regional statement was a
freshwater planning instrument.
Canterbury Regional Council
[63] In its pleading, the Canterbury Regional Council (CRC) asserted that whether
the proposed regional statement as a whole is a freshwater planning instrument was a
question of law. In submissions, it said the CRC did not take a position as to whether
the whole of the proposed regional statement was a freshwater planning instrument.
[64] Nevertheless, in an affidavit for the CRC, its regional planning manager Mr
Parish said that the CRC was reviewing its current regional policy statement, as the
RMA required of it every 10 years.34 He said the CRC’s current policy statement
34 RMA, s 79.
provided the strategic framework for all resource management issues in the region, it
was anticipated much of the document would “relate to freshwater” such that it should
proceed through the freshwater planning process set out in the RMA. The CRC
anticipated there may be parts of their policy statement and regulatory framework as
a whole that would not relate to freshwater, but it was currently unclear where the line
should be drawn to determine which provisions relate to freshwater “given the
integrated management philosophy underpinning the RMA and the CRC’s approach
to planning processes”.
[65] Mr Parish said that, in Canterbury and Otago, the integrated management
policy has more recently been expressed through the concept of ki uta ki tai.
[66] Mr Parish stated the concept of Te Mana o te Wai, as referred to in the National
Freshwater Policy, demonstrates that a broad range of activities can be considered to
relate to freshwater. He said that required local authorities to recognise the
interconnectedness of the whole environment − from the mountains and lakes, down
the rivers to hapua lagoons (lagoons or hapū estuaries) and to the sea.
[67] Mr Parish said planning consistent with ki uta ki tai required the CRC to ensure
the effects of activities are managed holistically and to recognise the
interconnectedness of the environment as a whole. This meant some activities
(although they may not seem, on their face, to relate to freshwater) do have impacts
on freshwater. As such, he anticipated it would be difficult to determine specifically
which parts of a document such as a regional policy statement “relate” to freshwater
within the terms of the RMA.
[68] Mr Parish said, accordingly, CRC sought further clarity as to how to determine
whether a document (or part of a document) “relates” to freshwater such that it can be
considered a freshwater planning instrument.
[69] The CRC also sought guidance as to whether determination as to which parts
of a planning instrument do not relate to freshwater should be on a chapter-by-chapter
basis or on a provision-by-provision basis.
[70] Through the submissions of Mr Maw, the CRC said it had “some reservations
as to how a regional policy statement could be effectively split between two planning
processes”. It said the key issues to this included:
(a) how submissions as to further integration between provisions are to be
considered if relevant provisions are required to be considered under two
separate planning processes;
(b) the extent of the Council’s discretion in terms of satisfying itself that the
planning instrument “relates to freshwater”; and
(c) the risks of splitting up provisions to proceed through separate planning
processes, both as to considering objectives separately from other
objectives and considering policies separately from their associated
objectives.
[71] The CRC submitted:
(a) The definition of a freshwater planning instrument included either:
(i) a planning document for the purpose of giving effect to any national
freshwater statement; or
(ii) a planning document that relates to freshwater (other than for the
purpose of giving effect to a national policy statement for freshwater
management).
(b) “Relates to freshwater” means something different than giving effect to
the National Freshwater Policy, but there is no guidance in the legislation
itself to determine how a council is supposed to decide what “relates” to
freshwater.
(c) In order to give effect to the concept of integrated management (or ki uta
ki tai) and the fundamental principle of Te Mana o te Wai, councils would
have to consider a range of matters:
… that may not be traditionally thought of (especially in a Western
sense) as relating to freshwater such that they are required to give
effect to the [National Freshwater Policy]. This can include aspects
such as the co-ordination and sequencing of regional or urban
growth.
(d) This would make it even more difficult to determine which provisions of
a planning document are for the purpose of giving effect to the National
Freshwater Policy or which otherwise relate to freshwater, or are unrelated
such that they should proceed through the usual pt 1 of sch 1 process.
(e) Section 80A(3) applies only if the regional council is satisfied that only
part of the instrument relates to freshwater. This ultimately leaves a
relatively broad discretion in the council’s hands to determine which parts
of the plan give effect to the National Freshwater Policy or otherwise relate
to freshwater, such that they should proceed through the freshwater
planning process.
(f) There are ways risks as to integrated management could be reduced if
different parts of the instrument go through different processes. For
instance, councils could nominate people to be members of both
freshwater hearings panels and panels dealing with other matters. It
nevertheless submitted there is still a need for:
… some level of clarity regarding which provisions were to proceed
through which process in order to determine whether an appeal on the
merits of the decision is available or not.
[72] The CRC suggested several principles should be recognised in determining the
approach councils should take in deciding whether a document or parts of a document
are a freshwater planning instrument.
[73] The first suggested principle was that the Court should err on the side of having
more parts of the proposed regional statement go through the freshwater planning
process rather than less, to allow submissions to be considered through the same
hearings process. Another was that, in order to achieve integrated management of the
natural and physical resources of the region, the provisions with relationships to each
other should proceed through the same planning process as far as practicable and,
“where provisions relate to freshwater but also other matters, they should proceed
through the freshwater planning process”.
Submissions of parties who argued the ORC’s decision that the proposed regional
statement, as a whole, was a freshwater planning instrument was not open to it
on a correct interpretation of s 80A of the RMA
[74] My later analysis sets out how s 80A is to be interpreted and applied.35 In
considering its purpose, I refer in detail to relevant aspects of the legislative
background as were brought to my attention in submissions for various parties. In the
interests of economy, I do not repeat them in detail here.
The Minister for the Environment
[75] The Minister for the Environment, through Ms Dixon, submitted:
(a) The determination required under s 80A was not what is excluded from
the freshwater planning process but what had to be included. The starting
point is the normal pt 1 of sch 1 process with the full submitter
participatory rights.
(b) Further, just as it is mandatory for a freshwater planning instrument to go
through the freshwater planning process,36 it is also mandatory that those
parts of a plan or policy statement that are not related to freshwater do
not.37 As the requirements of s 80A(3)(a) and (b) are mandatory, the test
must be rigorously applied.
(c) The RMA recognises that everything in the natural world is, to some
extent, connected to everything else. Recognising the need for an
integrated approach, it was best in draft plans and policy statements to
properly recognise and plan for interdependencies, co-dependencies and
interconnectedness. Nevertheless, it is possible to divide topics
administratively for hearing, as most councils do, so splitting some topics
to go down a different track would be similar.
35 See [117]-[147] below.
36 Section 80A(3).
37 Section 80A(3)(b).
[76] Ms Dixon referred to the Minister’s statement in introducing the Resource
Management Amendment Bill 2019 (the Amendment Bill) in September 2019 and
other aspects of the legislation process.38
[77] Counsel referred to the Departmental Report on the Amendment Bill (the
Report) prepared by the Ministry for the Environment of March 2020. The Report
referred to submissions that had been made to the Environment Committee in the
context of integrated management that advocated the fast track should apply to all
planning documents. The submissions were rejected on the basis that such a change
would interfere with the expedited process for freshwater.
Forest and Bird
[78] Forest and Bird submitted:
(a) The scope of what might be a freshwater planning instrument is
determined by s 80A(3). Section 80A(3) directs that provisions that do
not relate to freshwater cannot come within the definition of a freshwater
planning instrument and cannot be subject to the freshwater planning
process.
(b) Accordingly, provisions that give effect to broad directions in the National
Freshwater Policy such as integrated management cannot, by reason only
of this, be subject to the freshwater planning process. They must also
relate to freshwater. Put another way, provisions unrelated to freshwater
cannot be subject to the freshwater planning process simply because they
need to be integrated with freshwater management matters.
(c) This interpretation of s 80A is consistent with the general scheme and
purpose of the RMA and the manner in which it, in a number of instances,
separates freshwater from other natural and physical resources.
(d) The intended distinction between freshwater and other resources was put
beyond doubt by the legislative history of the Amendment Act. The
38 See [130] below.
intention behind the freshwater planning process was to introduce an
expedited process to address freshwater quality decline.
(e) Given the stringent timeframes required by the freshwater planning
process, freshwater hearings panels should not be burdened with
additional matters that are unrelated or only remotely related to freshwater.
Those are more appropriately dealt with through the standard process in
pt 1 of sch 1. The ORC’s approach would frustrate the intent behind the
freshwater planning process of putting in place a streamlined process
intended to expedite protection and restoration of freshwater.
(f) The scope of what “relates to freshwater” must be capable of pragmatic
assessment that is consistent with the RMA’s careful and deliberate
separation of decision-making procedures for natural and physical
resources.
(g) Where in a chapter there was only a limited reference to a freshwater issue,
adopting a pragmatic approach, the better course was to exclude the whole
of that chapter as not relating to freshwater.
(h) There was guidance in s 30 of the RMA as to what parts of a policy
statement would relate to freshwater with the reference to functions that
could be seen as clearly relating to freshwater, namely:
(i) controlling the use of land for the purpose of the maintenance and
enhancement of the quality or quantity of water in water bodies in s
30(c)(ii) and (iii); and
(ii) in relation to any bed of a water body, the control of planting any plant
in, on or under that land for the purpose of maintaining and enhancing
the quality and quantity of water in that water body in s 30(1)(g)(ii)
and (iii).
(i) The hearings panel must have two freshwater commissioners who have
expertise in relation to freshwater quality, quantity and ecology, Te Mana
o te Wai and water use in the local community. There is no express
requirement for panel members to have expertise in matters such as air
quality, marine ecology or other aspects of the environment. This
demonstrates the freshwater planning process was not tailored for wider
resource management matters. Where provisions require expertise outside
the scope of the panel members, such as the ecosystems and indigenous
biodiversity chapter, those provisions should go through the standard
process in pt 1 of sch 1.
(j) The land and freshwater domain chapter should be the only freshwater
planning instrument. There may be particular matters in other parts of the
proposed regional statement that relate to freshwater, but it would be
inappropriate to include every provision in that particular domain or topic
chapter as being related to freshwater. Adopting a practical approach, such
isolated matters should not be subject to the freshwater planning process.
(k) Section 80A is concerned with freshwater. Freshwater is defined in s 2 as
meaning “all water except coastal water and geothermal water”. Coastal
water is defined in s 2 as:
… seawater within the outer limits of the territorial sea and includes—
(a) seawater with a substantial freshwater component; and
(b) seawater in estuaries, fiords, inlets, harbours or embayments[.]
(l) The RMA makes clear distinctions between areas where freshwater is
present and areas where coastal water is present. The use of the term
“freshwater” in s 80A(3) indicates a deliberate choice to confine the
freshwater planning process to freshwater issues, rather than collateral
issues relating more broadly to other resources.
(m) Only one provision in the coastal environment domain chapter refers to
freshwater. The policy CE-P4(1)(c) requires the identification of “areas
and values of high and outstanding natural character which may include
matters such as: … natural landforms such as headlands, peninsulas, cliffs,
dunes,
wetlands, estuaries, reefs,
freshwater springs and
surf breaks”.39
39 Emphasis in original.
They submitted, while there is a reference to freshwater, it relates to the
natural character of the coastal environment and cannot easily be tied back
to freshwater quality, quantity or ecology.
(n) As examples of provisions in the coastal environment that are
spatially
distinct from freshwater and water bodies, they referred to statements as
to protection of nationally significant surf breaks, maintaining or
enhancing public access to and along the coastal marine area, provisions
as to activities that only occur in the coastal marine area, the reference to
aquaculture, which does not relate to freshwater, and to reclamation which,
by its very nature, can only occur in the coastal marine area.
(o) Several parts of the proposed regional statement did not claim to be related
to freshwater. The proposed regional statement contains a natural
landscape and features topic chapter which says it implements ss 6(b) and
7 of the RMA, without reference to the National Freshwater Policy or
integrated management.
The policies in this chapter are designed to require outstanding and
highly valued natural features and landscapes to be identified using
regionally consistent attributes, then managing activities to either
protect outstanding natural features and landscapes in accordance
with section 6(b) of the RMA 1991 or
maintain highly valued natural
features or landscapes in accordance with section 7 of the RMA 1991.
(emphasis in original)
This policy relates to landscape without any freshwater function.
(p) It is not tenable for the urban form and development chapter to “relate to”
freshwater when it makes no substantive reference to it. The proposed
regional statement states:
The policies in this chapter are designed to facilitate the provision of
sufficient housing and business capacity and ensure all of the region’s
urban areas demonstrate the features of
well-functioning urban
environments and meet the needs of current and future communities.
(emphasis in original)
[79] Forest and Bird acknowledged that, in the proposed regional statement, in a
separate chapter and in various other chapters, there is reference to mana whenua.
Forest and Bird said it deferred to mana whenua on those sections.
Oceana Gold
[80] Oceana Gold owns and operates New Zealand’s largest gold and silver mine.
The company holds more than 220 resource consents, mostly granted by the ORC.
The mine is located in east Otago around Macraes township. It is within a special-
purpose zone in the operative Waitaki District Plan which recognises the significance
of the mine to the Waitaki District. It operates in a negative water balance
environment, which means that Oceana Gold imports more water onto the site for
processing purposes than is discharged into the receiving environment.
[81] As with Forest and Bird, Oceana Gold submitted the key provision driving the
appropriate classification of the proposed regional statement is s 80A(3) and what
“relates to freshwater” means in that provision. They submitted, if the proposed
regional statement comprises parts which relate to freshwater and parts which do not
relate to freshwater, it is only those parts relating to freshwater that follow the
freshwater planning process. The parts that do not relate to freshwater must follow
the standard process in pt 1 of sch 1. They submitted that “relates to freshwater”
requires there be something more than a connection with freshwater.
[82] Oceana Gold submitted:
(a) The proposed regional statement was not for the purpose of giving effect
to any national policy statement for freshwater management because:
(i) the proposed regional statement was prepared for the purpose of
complying with the Minister for the Environment’s directions of 18
November 2019, not to give effect to the National Freshwater Policy;
(ii) the proposed regional statement does not mention the National
Freshwater Policy or any other national policy statement by name, and
neither “water” nor “freshwater” appear in its purpose; and
(iii) there had been no active consideration given to the council’s role of
“satisfying” itself as to the subject matter of the instrument and what
parts could be held to relate to freshwater in the advice given to the
ORC.
(b) The legislation contemplated there could be parts of a freshwater planning
instrument that “relate to freshwater” and parts that do not. They accepted
that all resources are interconnected and must be managed in an integrated
way. However, it does not follow that everything “relates to” freshwater
for the purposes of s 80A. That would be inconsistent with the Ministry
for the Environment’s technical guidance from September 2020 and the
purpose of s 80A.40
(c) If the interconnectedness of resources and need for integrated management
mean that “relates to freshwater” is synonymous with “some connection
to freshwater”, then s 80A(3) would not have any practical application.
(d) For parts of the proposed regional statement to be subject to the freshwater
planning process, they must “relate to freshwater” and that meant they had
to be provisions which implement a regional council function regarding
freshwater quality, quantity or ecology.
(e) The legislation requires a regional statement to set out and have regard to
the range of matters referred to in the RMA. Because of this, the proposed
regional statement is concerned with much more than just the management
of freshwater resources.
(f) If the Court were to make a declaration that the proposed regional
statement in its entirety relates to freshwater and so is a freshwater
planning instrument, the consequence would be that all regional policy
statements would be freshwater planning instruments and thus be subject
to the freshwater planning process. It would further mean that, if any
change or variation to the proposed regional statement was required to
give effect to any new or changed national instruments would “be related
40
A new Freshwater Planning Process: Technical guidance for councils (Ministry for the
Environment, September 2020).
to freshwater” and subject to the freshwater planning process. This would
be an absurd result and not what Parliament intended.
[83] Oceana Gold submitted the proposed regional statement contains provisions
that “at best have a tenuous connection with freshwater” and are instead directly
related to other important regional resource management issues such as urban
development, identification and protection of land for primary production, energy,
transportation, infrastructure, and the protection and maintenance of biodiversity.
[84] As to those matters, they submitted the freshwater planning process was poorly
suited to be the process for developing regional policy. The standard plan-making
process has the benefits of the availability of appeal rights and specialist judicial
oversight. They submitted that, with s 80A, Parliament decided the urgency of
achieving better freshwater management outweighed those benefits Oceana Gold
accordingly submitted the Court should be cautious in allowing s 80A to be utilised in
a way that would allow topics to be subject to the freshwater planning process in ways
Parliament had not clearly identified as being subject to that process.
[85] The Court had the assistance of an affidavit from Claire Hunter, a resource
management consultant. She helpfully summarised the legislative context in which
regional plans are prepared. There was also an affidavit from Alison Paul, Oceana
Gold’s general manager of corporate and legal affairs. Through their affidavits,
Oceana Gold highlighted matters in the proposed regional statement that had been of
concern to them and which they suggested were not related to freshwater issues. Those
concerns related to the lack of recognition of the significance of the mining and
extractive sectors and the lack of a policy recognising the locational constraints and
functional needs of mining because mining can only happen where minerals naturally
occur.
Port Otago Ltd
[86] Port Otago Ltd operates international ports at Port Chalmers and Dunedin.
[87] Port Otago submitted:
(a) Section 80A(3) is the driving consideration of what is a freshwater
planning instrument in terms of s 80A, so only the parts of the instrument
that relate to freshwater can be subject to the freshwater planning process.
(b) Consistent with the opinion of Ms van der Spek for the Waitaki District
Council, forcing all resource management issues into a process that was
intended for freshwater issues would not be an integrated approach nor
would it allow for appropriate consideration of all aspects of sustainable
management. Rather, it would cause all issues to be seen through the lens
of freshwater management and be dealt with only in that context.
(c) The proposed regional statement was not a freshwater planning instrument
in its entirety because it includes provisions relating to coastal water such
as the main domain “CE – Coastal environment” and policies relating to
seawater. Freshwater is defined in the RMA and in the proposed regional
statement to specifically exclude coastal water. Proposed regional coastal
plans are also excluded from the definition of freshwater planning
instruments by s 80A(8). The freshwater planning process is inappropriate
for an issue as complex as the application of the New Zealand Coastal
Policy Statement.
(d) The recommendation to the ORC that the whole of the proposed regional
statement could be considered a freshwater planning instrument had failed
to inform the ORC of the definition of “freshwater” and the exclusion of
seawater from consideration under the freshwater planning process.
(e) Because the ORC failed to identify those parts of the proposed regional
statement that were not related to freshwater, the process followed by ORC
in notifying the whole of the proposed regional statement as a freshwater
planning instrument was invalid.
Dunedin City Council and Waitaki District Council
[88] Mr Garbett appeared as counsel for the Dunedin City Council and Waitaki
District Council. He said those councils supported the submissions for Forest and Bird
in full, although the councils considered more chapters of the proposed regional
statement to substantially relate to freshwater.
[89] The Dunedin City Council’s opposition was supported by an affidavit from Dr
Anna Johnson, the city development manager. She identified that the Council’s key
concern with the proposed regional statement centres around how and whether it gave
effect to the National Policy Statement for Urban Development and adequately
provided for housing, and infrastructure to support housing in Dunedin. She said the
council’s submission to the ORC on the proposed regional statement “covered a broad
range of issues with a focus on topics related to growth and infrastructure, which are
distinct topics from freshwater or freshwater management”.
[90] Dr Johnson was concerned that, if the entirety of the proposed regional
statement went through the streamlined freshwater planning process, it would not be
a fair process and the regional statement would inadequately address issues relating to
urban development. She said:
Based on my previous experience with the 2015 [proposed regional
statement], the appeal process (and the opportunities it created for mediation
between the parties) was essential for creating a more workable [proposed
regional statement]. Those opportunities would not be afforded where appeals
are only allowed on points of law.
[91] The Waitaki District Council’s opposition was supported by an affidavit from
its executive officer, Victoria van der Spek. In her affidavit, she identified key issues
the Waitaki District Council had with the proposed regional statement that she said did
not directly relate to freshwater management. These issues related to concerns about
coastal erosion, the lack of recognition of carbon forestry as a significant resource
management issue in the Otago region with regard to its effects on pastoral farming,
the impact of such forestry on rural economies, loss of historically “productive land”,
negative impacts on local employment and agricultural services, reverse sensitivity
effects, issues with fire risk, wilding tree spread and issues with site rehabilitation. In
a response to the proposed regional statement, the Council had submitted there was
inadequate recognition of the Macraes mining operation and inadequate recognition
of certain social and civil buildings (including schools, churches, civil and public
buildings as historic heritage buildings).
[92] Mr Garbett accepted that the ORC had satisfied itself that the whole of the
proposed regional statement related to freshwater and thus was a freshwater planning
instrument. He submitted the ORC’s decision had to be available to it in terms of
either s 80A(2)(a) or (b). He submitted that the whole of the proposed regional
statement had to be for the purpose of giving effect to the National Freshwater Policy
or it had to entirely relate to freshwater. He submitted that only parts of the proposed
regional statement gave effect to the National Freshwater Policy and only parts relate
to freshwater.
[93] The Dunedin City Council and Waitaki District Council submitted the term
“relates to” should be to require “a cause or connection between”. They submitted
that, given the context in which s 80A was enacted and Parliament’s intention to
establish a streamlined planning process for freshwater instruments, the phrase
“relates to” was intended to apply to those instruments, or parts of them, that relate
directly to freshwater, and maintaining its quality and quantity.
[94] Mr Garbett was critical of the submission for the ORC that if freshwater is
mentioned in a chapter in the proposed regional statement then the whole of that
chapter should qualify as a freshwater instrument.
Central Otago District Council and Queenstown Lakes District Council
[95] The Central Otago District Council and the Queenstown Lakes District
Council’s (QLDC) positions were consistent with those of the Waitaki District Council
and Dunedin City Council.
[96] For Central Otago District Council and the QLDC, Ms Scott acknowledged
that parts of the proposed regional statement directly relate to freshwater.
Nevertheless, consistent with the submissions for Oceana Gold, Ms Scott submitted
that for the Court to find the National Freshwater Policy requires an integrated
approach to be taken so the entire proposed regional statement is a freshwater planning
instrument under s 80A(2)(a) would effectively render s 80A(2)(b) obsolete.
[97] These councils adopted Forest and Bird’s submissions on interpretation
principles and the primacy of s 80A(3) but emphasised that the interpretation of s
80A(3) is to be approached with two principles of interpretation in mind:
(a) the meaning of a statutory provision is to be ascertained from text in light
of purpose and context;41 and
(b) Parliament is presumed to legislate in a manner that produces a practical,
workable and sensible result.42
[98] These councils submitted it is overly simplistic to say, if there is any connection
with freshwater in a chapter regardless of proximity or centrality, then the whole
chapter or topic will relate to freshwater for the purposes of s 80A. This interpretation
ignores Parliament’s intention in s 80A(3) that parts of a proposed regional policy
statement that do not relate to freshwater are to go through the standard process in pt
1 of sch 1.
[99] The QLDC’s position was supported by an affidavit from its manager of
planning policy, Alyson Hutton. She said the QLDC’s interest in the case was that the
proposed regional statement addresses a broad range of matters which she and the
QLDC considered do not relate to freshwater. The QLDC opined that, to ensure good
planning outcomes, those provisions required examination through a broader resource
management lens rather than with a focus on freshwater issues. In that regard, for the
Central Otago District Council and the QLDC, the absence of merits-based appeals as
to non-freshwater issues was a further and significant concern.
[100] It was Ms Hutton’s opinion that a provision in the proposed regional statement
must “relate to freshwater in a more than tangential way” for it to be treated as part of
a freshwater planning instrument.
[101] Ms Hutton referred to the QLDC’s interest in the natural features and landscape
section of the proposed regional statement. This relates to the management of features
or landscapes identified as an outstanding natural feature or outstanding natural
41 Legislation Act 2019, s 10.
42
R v Salmond [1992] 3 NZLR 8 (CA) at 13, per Cooke P.
landscape. The QLDC was critical of the ORC’s submission that the chapter in the
proposed regional statement as to outstanding natural features and landscapes could
be treated as relating to freshwater because these features included certain areas of
freshwater, for example a river. The QLDC said that submission ignored the reality
that a significant number of such features have no relationship to freshwater
whatsoever.
[102] An affidavit was filed for the Central Otago District Council by its principal
policy planner, Ann Rodgers. Ms Rodgers identified that the majority of the District
Council’s areas of interest on the proposed regional statement focused on issues other
than freshwater management.
[103] An example she referred to was Central Otago experiencing some of the
coldest temperatures in the country during the winter months and the potential for the
timing of the phasing out of non-compliant wood burners to adversely affect the health
of communities who may not be able to replace their heating.
[104] Consistent with affidavit evidence from other planners, she expressed a
concern that, with the freshwater hearings panel’s emphasis on freshwater expertise,
there would be a risk that the final regional policy statement might continue to give
inadequate attention to the National Policy Statement on Urban Development and
issues related to growth. Having those matters go through the streamlined freshwater
planning process would not be a fair process for the District Council and would be
unlikely to deliver the quality of decision-making it expects on non-freshwater
matters. She noted the District Council’s appeal rights as to such matters would be
severely limited if that is how these issues are to be dealt with.
Rayonier Matariki Forest Ltd and Ernslaw One Ltd
[105] Rayonier Matariki Forests Ltd (Rayonier) is a forestry company owning or
managing over 70 forests located throughout New Zealand, including 7,780 ha of
predominantly pinus radiata in the Otago region. Ernslaw One Ltd (Ernslaw) is a
forestry company managing up to 130,000 ha throughout New Zealand. This includes
20,360 ha of pinus radiata and Douglas fir in the Otago region.
[106] Rayonier and Ernslaw asserted parts of the proposed regional statement,
including parts relating to “coastal water”, are not for the purpose of giving effect to
the National Freshwater Policy nor do they otherwise relate to freshwater.
[107] As to the interpretation of s 80A, Ms Gepp for Rayonier and Ernslaw
submitted:
(a) If Parliament intended regional plans to be freshwater planning
instruments in their entirety, there would have been no need to introduce
and define “freshwater planning instruments”. Parliament could have
simply said the freshwater planning process would apply to regional policy
statements and regional plans.
(b) The expertise of the commissioners making up the freshwater hearings
panel would be focused on “freshwater quality, quantity and ecology” with
broader expertise on judicial process, the RMA, and tikanga Māori and
mātauranga Māori.43 The ability for additional members to be appointed
to extend the expertise would not be enough to ensure the panel is
equipped to deal with regional plan provisions that do not squarely relate
to “freshwater”. The composition of the hearings panel is consistent with
Parliament intending that the emphasis in the freshwater planning process
would be on freshwater considerations.
(c) Parts of the proposed regional statement that are for the purpose of giving
effect to the National Freshwater Policy will qualify as a freshwater
planning instrument but only insofar as they give effect to the freshwater
focus of the National Freshwater Policy. In applying s 80A(2), there had
to be a “causal connection” in both the National Freshwater Policy and the
proposed regional statement to freshwater. She submitted, if the
connection was only through some general interconnectedness of the
environment, it would be too “remote” or “obscure” to meet the threshold
for treatment as a freshwater planning instrument as provided for in s
80A(2).
43 RMA, sch 1 cls 59(6) and 64.
(d) The freshwater planning process strained the concept of integrated
management because it provided for separate processes to develop parts
of the plan that were to give effect to the National Freshwater Policy and
which related to freshwater from those parts which did not do so. This
was the consequence of s 80A.
(e) The establishment of the freshwater planning process to deal with
freshwater issues did not have to be completely at odds with integrated
management. Having different planning processes to deal with different
parts of a regional policy statement does not prevent integrated
management of natural and physical resources. Regional coastal plans and
regional plans can and do address other regional council functions
separately.44 It will be mandatory for the freshwater hearings panel to “be
sure” that its recommendations comply with the statutory requirements
that apply to the regional council’s preparation of the plan.45
(f) In terms of legislative requirements, s 80A is specific and later in time than
the sections requiring integrated management, so s 80A should prevail
where the provisions conflict.
(g) Treating the whole proposed regional statement as a freshwater planning
instrument would curtail appeal rights in respect of all resource
management matters under the proposed regional statement. The
legislative history, as detailed later in this judgment, shows that Parliament
intended the streamlined process with limited appeal rights would have
limited reach.
(h) The implementation of other RMA instruments, including the National
Environmental Standards for Plantation Forestry would be undermined if
the entire proposed regional statement is a freshwater planning instrument.
Those standards are intended to provide a set of nationally consistent rules
to manage the environmental effects of plantation forestry. There would
be significant consequences for the efficiency and effectiveness of forestry
44 Section 64.
45 Sch 1 cl 50(d).
operations if that is undermined through the freshwater hearings panel
recommending rules more stringent than would be permitted by the
National Environmental Standards for Plantation Forestry.
(i) Where the phrase “relates to” is intended to capture multiple
environmental domains elsewhere in the RMA, this is expressly stated.
For example, per s 86B(3)(a), a rule in a proposed plan has immediate
legal effect if it “protects or leads to water, air, or soil (for soil
conservation)”.
(j) The requirement for a regional council to be satisfied as to whether a
regional policy statement is or is not a freshwater planning instrument does
not mean that a council’s decision as to this is immune from challenge. It
must make its decision by applying the correct legal test. Here, the ORC
had applied the incorrect legal test and was in error in classifying the whole
of the proposed regional statement as a freshwater planning instrument.
The interpretation of s 80A of the RMA
Legal principles
[108] The meaning of legislation must be ascertained from its text and in the light of
its purpose and its context.46
[109] In
Commerce Commission v Fonterra Co-operative Group Ltd, Tipping J for
the Supreme Court said:47
[22] … The meaning of an enactment must be ascertained from its text and
in the light of its purpose. Even if the meaning of the text may appear plain in
isolation of purpose, that meaning should always be cross-checked against
purpose ... In determining purpose the Court must obviously have regard to
both the immediate and the general legislative context. Of relevance too may
be the social, commercial or other objective of the enactment.
…
46 Legislation Act 2019, s 10(1).
47
Commerce Commission v Fonterra Co-operative Group Ltd, [2007] NZSC 36, [2007] 3 NZLR
767. Footnotes omitted.
[24] Where, as here, the meaning is not clear on the face of the legislation,
the Court will regard context and purpose as essential guides to meaning.
[110] In
AFFCO New Zealand Ltd v New Zealand Meat Workers and Related Trades
Union Inc, Arnold J for the Supreme Court stated:48
The starting point for the court’s consideration of context will be the
immediate context provided by the language of the provision under
consideration. We accept that surrounding provisions may also provide
relevant context, and that it is legitimate to test the competing interpretations
against the statute’s purpose, against any other policy considerations reflected
in the legislation and against the legislative history, where they are capable of
providing assistance. While we accept Mr Jagose’s point that the context must
relate to the statute rather than something extraneous, we do not see the
concept as otherwise constrained.
Why the meaning of the legislation is not clear
[111] Here, the meaning of various provisions in s 80A is not clear.
[112] On its face, s 80A would appear to be about freshwater issues as if they are
distinct from other aspects of the environment. The heading to subpt 4 of pt 5 is
“Freshwater planning process”. Section 80A refers to a “freshwater planning
instrument” and the “freshwater planning process”. Associated with this was the
establishment of a “freshwater hearings panel” and the appointment of “freshwater
commissioners” under pt 4 of sch 1.
[113] Section 80A(2)(a) defines a freshwater planning instrument as meaning “a
proposed regional plan or regional policy statement for the purpose of giving effect to
any national policy statement for freshwater management”. It does not say whether it
will be sufficient if a regional policy statement gives effect
in any way to such a
national policy statement. It does not say whether it is, there, referring to those parts
of a national policy statement for freshwater management that relate directly to the
management of freshwater. It does not say whether, if a regional policy statement is
giving effect to a national policy statement, it is the whole of the regional policy
statement that will qualify as a freshwater planning instrument or whether it will be
only those parts that give effect to such a national policy statement.
48
AFFCO New Zealand Ltd v New Zealand Meat Workers and Related Trades Union Inc [2017]
NZSC 135, [2018] 1 NZLR 212 at [65].
[114] Section 80A(2)(b) extends the definition of a freshwater planning instrument
beyond what is captured by s 80A(2)(a) to include an instrument that “relates to
freshwater”. This must be other than for the purpose of giving effect to a national
policy statement for freshwater management, but s 80A(2)(b) does not otherwise say
what “relates to freshwater” means.
[115] There is then the limitation in s 80A(3). It says:
However, if the council is satisfied that only part of the instrument relates to
freshwater, the council must—
(a) prepare that part in accordance with this subpart and Part 4 of Schedule
1; and
(b) prepare the parts that do not relate to freshwater in accordance with Part
1 of Schedule 1 or, if applicable, subpart 5 of this Part.
[116] Section 80A(3) does not state that, where a proposed regional plan or policy
statement has been prepared for various purposes or pursuant to various functions, the
regional council
must satisfy itself which parts of the instrument relate to freshwater.
It is also not clear whether the proviso in s 80A(3) applies only to the way in which an
instrument would qualify as a freshwater planning instrument as referred to in s
80A(2)(b). Does s 80A(3) also require a regional council to decide what parts of a
national policy statement for freshwater management relate to freshwater for the
purpose of deciding whether an instrument is a freshwater planning instrument
because it gives effect to a national policy statement for freshwater management?
Legislative process
[117] As most parties acknowledged, and the select committee (the Environment
Committee) recognised,49 it is not clear from the wording of s 80A what constitutes a
freshwater planning instrument. It is accordingly necessary and appropriate to
consider the context in which the legislation was enacted and its purpose, as apparent
from the legislative process.
[118] On 19 June 2019, the Ministry for the Environment prepared a policy
document for Cabinet seeking a decision to amend the RMA by introducing a new
49 Resource Management Amendment Bill 2019 (180-1) (select committee report) at 5-6.
planning process for freshwater. The document was headed “Impact Statement: A new
planning process for freshwater” (the Policy Document).
[119] In
R v Howard, the Court of Appeal referred to a tendency for judgments to
refer to commission and committee reports.50 The Court of Appeal said, where the
language in relevant legislation was clear, such reports would not be of value in
construing the relevant phrase but “[i]t would be otherwise if the language were
ambiguous”.51 The Court referred to cases where such reports offered an aid to the
interpretation of legislation which was unclear on its face.52
[120] In
Minister of Conservation v Mangawhai Harbour Restoration Society Inc,
Campbell J said there was doubt over the extent to which Cabinet papers can be used
in the interpretation of Acts of Parliament.53 He referred to the Court of Appeal’s
judgment in
Sky City Auckland Ltd v Gambling Commission.54 The Court of Appeal’s
reservation there was as to reliance or reference to papers that had been prepared for
Cabinet where their intention at the time of the relevant Cabinet meeting may be
different from Parliament’s intention when passing the Amendment Bill into law.55
These papers were distinguished from materials that were put before Parliament or
were part of the Parliamentary processes, for example, a select committee report or
explanatory notes.
[121] The Policy Document is consistent with the Amendment Bill finally presented
to and approved by Parliament. It was advice prepared by the Ministry for the
Environment and presented to Cabinet by the Minister for the Environment. It was
this Minister who introduced the Amendment Bill to Parliament on its various
readings. He was also responsible for the coming into force of the National Freshwater
Policy to which the Amendment Act related.56
50
R v Howard [1987] 1 NZLR 347 (CA) at 352.
51 At 353.
52 At 352.
53
Minister of Conservation v Mangawhai Harbour Restoration Society Inc [2021] NZHC 3113 at
[105].
54
Skycity Auckland Ltd v Gambling Commission [2007] NZCA 407, [2008] 2 NZLR 182.
55 At [40]-[41].
56 RMA, s 52(2).
[122] The explanatory note to the Amendment Bill when it was first introduced under
the heading “Regulatory impact assessments” stated:57
The Ministry for the Environment produced regulatory impact assessments in
June and September 2019 to help inform the main policy decisions taken by
the Government relating to the contents of this Bill.
Copies of these regulatory impact assessments can be found at—
• …
• http://www.treasury.govt.nz/publications/informationreleases/ria
[123] Through that link, Parliament was referred to the Policy Document.
[124] The Policy Document identified that the problem requiring Government
intervention was the continuing decline in freshwater quality, and the current
regulatory system was not producing outcomes fast enough. It said the best option
would be to assist in councils implementing the National Freshwater Policy by 2025.
This would be done by introducing a “new, faster process for planning for freshwater
under the RMA” with a “central panel of suitably experienced freshwater hearing
commissioners … to convene local panels to hear and make recommendations on
freshwater plan changes”.
[125] The Policy Document identified that the key problem to be addressed in order
to enable faster and improved implementation of national policy statements for
freshwater management was the statutory planning processes under the RMA. To
address that key problem, the Policy Document referred to its proposed approach
being “mandatory new planning process for freshwater plan changes only”. The
purpose was not to mandate a new freshwater planning process for all new regional
policy statements or changes to regional policy statements. As to that, the Policy
Document said:
It is proposed that the process is restricted to policy statement or plan changes
that relate to freshwater, and would apply from the point of public notification
of the change. … It is intended that the process would include regional plan
changes that relate directly to water quality and quantity, and also to the
control of land use for the purpose of the maintenance and enhancement of
water quality and quantity, recognising the impact the control of land use can
have on freshwater management. Plan changes this would capture could
57 Resource Management Amendment Bill 2019 (180-1) (explanatory note) at 6.
include, for example, changes to regional plans to set limits on water use or
discharges, such as nitrogen, or provisions to identify outstanding water
bodies to ensure the protection of these.
…
Despite difficulties councils may face in separating out freshwater related plan
changes, a clear requirement to use the process removes a perceived avenue
for challenge over the choice of process and makes it more likely that the
[National Freshwater Policy] timeframes will be met, a key objective of the
proposal. It is considered that requiring water related plan changes, which can
include regional land use rules, is the most effective in terms of integrated
management. Only requiring freshwater related plan changes to progress
through the process will limit the impact of the proposal on other aspects of
the resource management system, meaning that implementation should be
more straightforward. There will also be greater consistency in decision-
making regarding freshwater management throughout the country, through
standardised procedures.
[126] In advising on key groups that were likely to be interested in the proposal, the
Policy Document noted:
[A]l tangata whenua have a special interest in and relationship with water.
The comprehensive review of the resource management system, and the
Essential Freshwater programme will more comprehensively consider tangata
whenua perspectives.
(emphasis in original)
[127] The Policy Document mentioned an alternative approach of providing further
implementation support and the use of existing tools under the RMA to strengthen
implementation of the National Freshwater Policy. The Policy Document stated that
the alternatives available would:
… not sufficiently address the overarching problem that councils are
struggling to implement the [National Freshwater Policy] in a timely manner.
On the other hand, the proposed approach would enable a more effective and
co-ordinated approach to freshwater planning nationally, and provide a more
fit for purpose process for freshwater, which recognises the litigious, complex
and costly nature of freshwater planning.
[128] The Policy Document also referred to the option of a new planning process for
a wider variety of plan changes. It said there needed to be more analysis to determine
what other resource management issues might be appropriate for the proposed
freshwater planning process. As to that potential, the Policy Document said:58
This widening in scope would however make the proposal less feasible. It is
already anticipated that the pool of freshwater commissioners will need to
schedule and hear approximately 10-20 freshwater plan changes a year
initially, and cover a wide skill set between them. If further topic areas were
available for consideration through this process, this could increase the cost,
and feasibility of enabling the timely implementation of the [national policy
statements for freshwater management], given that resource would be diverted
to these other topic areas.
It is considered that any wider changes to the planning process should be
considered in a more integrated way, as part of the more comprehensive
review of the resource management system.
[129] The Amendment Bill was presented to Parliament by the Minister for the
Environment for its first reading on 26 September 2019.59
[130] In introducing the Amendment Bill, the Minister said:60
Changes are … necessary to support the delivery of the Essential Freshwater
action plan, which is currently out for consultation. The Government’s
committed to improving New Zealand’s freshwater quality by stopping further
degradation and loss, and reversing past damage. Key to achieving this will
be a new National Policy Statement for Freshwater Management under the
RMA … However, we already know that the majority of councils will not be
fully implementing even the 2017 national policy statement (NPS) until 2030
or later. That 13-year delay makes it clear that the standard RMA planning
process is too slow to implement the new freshwater NPS. So to ensure that
necessary plan changes are made by 2025, after which time the NPS will have
prospective effect, the bill introduces a new specialised planning process for
freshwater plans …
[131] The explanatory note which accompanied the Amendment Bill included these
statements:61
58 At the time this proposal was formulated, the proposal was referring to the National Policy
Statement−Freshwater Management 2014 which was subsequently amended in 2017. The
Minister was working on a new National Policy Statement for Freshwater Management which
took effect on 3 September 2020.
59 Resource Management Amendment Bill 2019 (180-1).
60 (26 September 2019) 741 NZPD 14222.
61 Resource Management Amendment Bill 2019 (180-1) (explanatory note) at 5 and 7.
Improving freshwater management
New specialised planning process for freshwater
To support the urgent need to improve freshwater management, the Bill
provides a new plan making process that councils must use for proposed
regional policy statements of regional plans (or changes) for freshwater. The
Bill requires that councils notify changes to their regional policy statements
and regional plans to implement the [National Freshwater Policy] no later than
31 December 2023, and make final decisions by 31 December 2025.
…
Clause 13 repeals subpart 4 of Part 5, which relates to the collaborative
planning process, and replaces it with a new subpart that establishes the
freshwater planning process. Regional councils must comply with the
freshwater planning process when preparing a freshwater planning instrument.
A freshwater planning instrument means a proposed regional plan, regional
policy statement, or change or variation that—
• gives effect to the National Policy Statement for Freshwater Management
2020; or
• otherwise relates to freshwater.
[132] In its report on the Amendment Bill, the Environment Committee said that a
significant reform from the Amendment Bill would be the introduction of a new
freshwater planning process for regional or unitary councils carrying out regional
freshwater functions.62 Those councils would be required to follow the new freshwater
planning process for proposed regional policy statements and regional plans (including
changes to them) containing provisions that give effect to the National Freshwater
Policy or otherwise relate to freshwater. The new freshwater planning process would
assist councils to meet the 2025 deadline for implementing the requirements of the
National Freshwater Policy.
[133] The Environment Committee referred to the then proposed s 80A(2) and its
statement as to the meaning of “freshwater planning instrument”. The Committee
reported:63
We recognise that what constitutes a “freshwater planning instrument” may
not be clear-cut, and that some planning instruments may have some
provisions that relate to freshwater, and other provisions that do not.
62 Resource Management Amendment Bill 2019 (180-1) (select committee report) at 4.
63 At 5-6.
New s 80A(4)(a) would require a regional council to notify the public of the
new freshwater planning instrument. Some of us think that, at that stage, the
council should provide a statement about whether the whole instrument will
undergo the freshwater planning process (under Part 4 of Schedule 1), or if
only part of it will. The part that does not would undergo the standard planning
process (under Part 1 of Schedule 1). Some of us believe this approach would
provide greater transparency and reduce confusion.
To effect this change, we recommend amending new section 80A(3) and
inserting new clause 72(1)(A) which would insert new clause 5(2A) into
schedule 1 of the RMA.
(emphasis added)
[134] Before the Environment Committee reported back, s 80A(3) in the Amendment
Bill had stated only “[a] regional council must prepare a freshwater planning
instrument in accordance with this subpart and Part 4 of Schedule 1”.
[135] The Environment Committee added the following to s 80A(3) in the
Amendment Bill reported to Parliament:64
However, if the council is satisfied that only part of the instrument
relates to freshwater, the council must—
(a) prepare that part in accordance with this subpart and Part 4 of
Schedule 1; and
(b) prepare the parts that do not relate to freshwater in accordance
with Part 1 of Schedule 1.
[136] The version enacted into law included the words “or, if applicable, subpart 5
of this Part” in s 80A(3)(b).
[137] The Ministry for the Environment prepared the Report on the Amendment Bill
in March 2020. The Report referred to and considered submissions made to the
Environment Committee. It was made available to Parliament at the same time as the
Environment Committee reported back to Parliament and before the second reading
of the Amendment Bill began on 27 May 2020.
[138] In describing the broader context of the Amendment Bill, the Ministry said:
64 Resource Management Amendment Bill 2019 (180-2), cl 13.
There has been growing criticism that decisions under the RMA have not
resulted in positive outcomes for the natural environment. Freshwater,
biodiversity and the marine domain are facing pressures from human
activities, and in many places ecosystems are in decline. Meanwhile the cost
and complexity of RMA processes can form a barrier to delivering efficient
social and economic outcomes (eg affordable housing). There is widespread
agreement that substantial reform of the RMA is needed. To address this, the
Government has embarked on a two-staged review of the resource
management system. This Resource Management Amendment Bill comprises
stage one.
[139] Stage two referred to the review of the RMA by a panel chaired by a retired
Court of Appeal Judge, Tony Randerson.
[140] The Report said the objectives of the amendments proposed in the stage one
Amendment Bill were to:
A. reduce complexity in existing RMA processes, increase certainty for
participants, and restore previous opportunities for public participation
B. improve existing resource management processes and enforcement
provisions, and
C. improve freshwater management.
In relation to the third objective, proposals in this Bill are in support of the
Government’s
Essential Freshwater programme …
[141] As to the freshwater planning process, the Report stated:
The Government is committed to improving New Zealand’s freshwater quality
by stopping further degradation and loss, and reversing past damage. Key to
achieving the freshwater goals is a new NPS-FM [national policy statement
for freshwater management] which is expected to be in place by mid-2020.
This needs to be implemented by regional councils in a timely way if it is to
be effective.
As previous noted, recent reporting from councils to the Ministry has shown
that the majority of regional councils are unlikely to meet the existing deadline
of fully implementing the 2017 NPS-FM by 2025 and are likely to take until
2030 or later (the deadline can currently be extended to 2030 in certain
circumstances). The Government’s view is that such delays are unacceptable
and risk further degradation of rivers, lakes and aquifers.
The reasons for delay are varied but include slow standard RMA plan-making
processes. The freshwater planning process would require plans to be in place
by 2025 which the Government sees as an essential first step.
[142] The Report noted that council submitters and others had questions on the scope
of what is captured by the freshwater planning process. Some submitters suggested
the scope was too wide, whereas others suggested it was too narrow because it was
limited to freshwater. The Report said some submitters were concerned about the
separation of freshwater from other aspects of councils’ planning functions. The
submitters said, in that way, the Amendment Bill discouraged integrated management
across, for instance, freshwater and coastal boundaries. The Report referred to the
ORC submitting that to isolate the development of freshwater planning was contrary
to good integrated plan-making and resource management.
[143] In its analysis of submissions, the Report said:
Clarity around the scope of matters captured by freshwater planning process
and integrated management
The phrase “giving effect to the NPS-FM” [National Policy Statement for
Freshwater Management], captures all requirements that arise from the NPS-
FM. This includes the NPS-FM requirements to consider and recognise Te
Mana o te Wai and to recognise the interactions of Ki uta ki tai between the
ecosystems of freshwater, land and sensitive receiving environments
including the coast. Planning content will also be driven by regional council
functions under section 30(1)(c) to
control the use of land for the purpose of
the maintenance and enhancement of the quality of water and water bodies
and coastal water and the maintenance of the quantity of freshwater.
The phrase “or otherwise relates to freshwater” is intended to be a catchall for
any water related matter that might not be captured under the NPS-FM. For
example, to manage structures in the beds of rivers/lakes or flood management
policy/rules. This seeks to avoid a situation where a matter that is clearly
water related cannot go through the freshwater planning process because it is
not captured by the NPS-FM.
Extending scope beyond freshwater (regional plans and unitary plans)
Many councils want the process to be extended to capture
all regional council
functions. Marlborough District Council, Tasman District Council and others
seek to combine regional and district plan provisions in a single process.
We acknowledge the efficiencies that this may bring, but this must be
considered against the key driver of the policy change, which is to have
freshwater planning instruments in place by 2025. Councils have told us that
reaching that date will already be a challenge. Including additional RMA
matters that need to be developed and notified by 2023 would add further to
the burden of reaching the notification date and ultimately may risk not having
freshwater plans in place by 2025. We do not recommend a change to allow
the hearings panel to address wider regional matters or district plan provisions
at this time.
Relationship to other plan reviews
We acknowledge the points made about integrated plans, integrated catchment
management and efficient processes. However the policy directive to have
plans notified by 2023 makes this change impracticable at this time. Councils
may be able to have members in common for freshwater hearings panels and
panels dealing with other matters.
(emphasis in original)
[144] Similarly, the Report referred to submitters’ concerns as to notification
timeframes for freshwater planning instruments but emphasised the Government’s
desire to have all instruments notified by 31 December 2023 to halt freshwater
degradation and start to improve water quality.
[145] In its definition of “freshwater planning instrument” in s 80A(2)(a), the
Amendment Bill referred to a proposed regional plan or regional policy statement for
the purpose of giving effect to the National Freshwater Policy.65 The Report
recommended Parliament proceed with s 80A(2)(a) as in the Amendment Bill but with
the removal of the 2020 date.
[146] The Report referred to s 80A(3) in the Amendment Bill as requiring regional
councils to prepare freshwater planning instruments in accordance with pt 4 of sch 1.
It said no issues had been raised in relation to this section and they recommended
Parliament proceed with s 80A(3) as drafted.
[147] In introducing the Amendment Bill for the third reading on 24 June 2020, the
Minister for the Environment, David Parker, said:66
The bill we are considering today includes provisions to improve freshwater
quality. The bill introduces a new freshwater planning process that ensures
regional council plans are updated as soon as possible and in a manner
consistent with Te Mana o te Wai.
Interpretation of s 80A
[148] The above aspects of the legislative process indicate that, with the Amendment
Act, Parliament was neither intending nor contemplating that the whole of a regional
65 Resource Management Amendment Bill 2019 (180-1), cl 13.
66 (24 June 2020) 747 NZPD 19015.
policy statement which dealt with matters other than freshwater management would
be subject to the freshwater planning process.
[149] Rather, the background, wording and references to freshwater in s 80A were
all consistent with Parliament contemplating that issues relating to freshwater could
be identified as discrete matters and only such matters would be subject to the
freshwater planning process. The possibility of widening the scope of matters that
might be considered through the freshwater planning process was brought to the
attention of Cabinet and Parliament through the Ministry’s initial Policy Document
and to Parliament through the Report after the Environment Committee process. That
option was expressly rejected primarily because it would delay progress in improving
the quality of freshwater management which the Government was committed to.
[150] The ORC and Ngā Rūnanga argued that the purposes of integrated
management, the fundamental concepts of Te Mana of te Wai and ki uta ki tai required
the ORC to recognise that all aspects of the environment and all aspects of human
activity are interconnected and relate to freshwater. So, everything in the proposed
regional statement could properly be determined to give effect to the National
Freshwater Policy or relate to freshwater.
[151] When the Amendment Act was passed in 2020, the need for an integrated
approach to the management of natural resources was already in the RMA. If
adherence to the principle of integrated management could justify the whole of a
proposed regional policy statement or plan being treated as a freshwater planning
instrument under s 80A(2)(a), there would have been no need for the particular
provision in s 80A(2)(b) or the qualification referred to in s 80A(3).
[152] If Parliament had intended s 80A(3) to be a qualification only as to the way
and extent to which a regional statement might qualify as a freshwater planning
instrument under s 80A(2)(b), it could reasonably have been expected to say so. It
could also have been expected that, if the qualification applied only to the definition
in s 80A(2)(b), it would have appeared immediately adjacent to s 80A(2)(b) rather
than as s 80A(3) where logically it could relate to both s 80A(2)(a) and (b).
[153] Significantly, the qualification to the definition of freshwater planning
instrument in s 80A(3) was added only when the Environment Committee reported
back and was not included when s 80A(2)(b) first appeared in the Amendment Bill.
[154] Regional councils, including the ORC, submitted to the Environment
Committee that splitting the planning processes for regional plans would make it more
difficult to provide for the integrated management of natural resources. The Ministry’s
Policy Document outlined that timely compliance and progress in accordance with the
National Freshwater Policy was the primary objective of the policy changes.
[155] The Amendment Act established the freshwater hearings panel.67 It required
freshwater hearings panels to include five members who, collectively, have expertise
in freshwater management issues.68 Although it left final decisions to the regional
council, it transferred significant decision-making ability on freshwater issues to the
freshwater hearings panel and reduced the scope of potential appeals to the
Environment Court on freshwater issues.69 I consider the Amendment Act
contemplated that the focus of freshwater hearings panels would be on protecting and
improving the quality of freshwater in New Zealand and, in particular, giving effect to
national policy statements on freshwater management by 2025. There is potential for
members with other areas of expertise to be appointed to hearing panels.70
Nevertheless, I agree that Parliament contemplated the focus of the freshwater
planning process would be narrower than the purpose of the RMA generally.
[156] Regional councils must prepare regional policy statements consistently with
the purpose of the RMA, which is to promote the sustainable management of natural
and physical resources.71 Sustainable management means:72
… managing the use, development, and protection of natural and physical
resources in a way, or at a rate, which enables people and communities to
provide for their social, economic, and cultural well-being and for their health
and safety while—
67 Amendment Act, s 103; RMA, sch 1 pt 4.
68 Amendment Act, s 103; RMA, sch 1 cls 59 and 65.
69 Amendment Act, s 22; RMA, s 80A(5)(d) and sch 1 cls 54-56.
70 RMA, sch 1 cl 59.
71 Section 61(1)(b).
72 Section 5.
(a) sustaining the potential of natural and physical resources (excluding
minerals) to meet the reasonably foreseeable needs of future generations;
and
(b) safeguarding the life-supporting capacity of air, water, soil, and
ecosystems; and
(c) avoiding, remedying, or mitigating any adverse effects of activities on
the environment.
[157] To interpret s 80A in a way that would allow the whole of a plan or policy
statement to be subject to the freshwater planning process would likely result in all
aspects of that instrument being considered primarily from a freshwater perspective.
The legislative history indicates this is not what Parliament intended with the
introduction of s 80A.
[158] I accordingly do not consider that the ORC’s function of achieving integrated
management of natural and physical resources and the requirement to recognise and
give effect to the fundamental concepts of Te Mana o te Wai and ki uta ki tai required
or allowed it to treat the whole of its proposed regional statement as a freshwater
planning instrument so as to subject it to the freshwater planning process.
[159] In reaching that determination, I have not sought to minimise the importance
of integrated management or Te Mana o te Wai in dealing with all resource
management issues which have to be dealt with in the proposed regional statement.
Te Mana o te Wai remains the fundamental concept in the National Freshwater Policy.
[160] A regional council, in preparing regional policy statements and their hearing
panels in reviewing the statements, or freshwater hearings panels, will all have to give
effect to the principles of Te Mana o te Wai and of Te Tiriti o Waitangi in their
consideration of all matters they are separately concerned with.73
[161] It will be only those parts of a proposed regional policy statement that relate to
freshwater that can be part of a freshwater planning instrument. All other parts of a
regional policy statement will remain subject to the normal planning process set out
in pt 1 of sch 1 of the RMA. As the affidavits from Mr Parish for the CRC and Mr
73 RMA, s 61(1)(b) and (da) and sch 1 cl 50(d).
Ellison for Ngā Rūnanga demonstrated, regional councils must and do work in
partnership with local iwi in carrying out all their functions under the RMA. They
will have to continue doing this when dealing with those parts of the regional policy
statement that are not subject to the freshwater planning process.
[162] How councils do this and the decisions they make will be subject to review by
interested parties, with the full rights of appeal to the Environment Court which they
currently have. They will not have the same rights of appeal as to matters that are
subject to the freshwater planning process.
[163] In their submissions for the Minister, counsel referred to a statement from the
Environment Court in
Bay of Islands Maritime Park Inc v Northland Regional
Council.74 The Environment Court said it was the intent of the National Freshwater
Policy and of the relevant legislation to provide an integrated approach to freshwater
management:75
The objective was not to subsume the entire environment including the
[coastal marine area] and land use within the purview of the freshwater
regulations or freshwater regime set up under s 80A. To do so would be
anathema given the requirement to develop the regional plans and regional
coastal plans separately to those for freshwater. Having said that, we
acknowledge that it is intended that the [National Freshwater Policy] should
work together with other documents including the [New Zealand Coastal
Policy Statement] regional policies and plans and regional coastal plans to
create a seamless whole.
[164] My interpretation of s 80A recognises that Parliament established a separate
planning process for those parts of a proposed regional statement that relate to
freshwater. That being the case, those involved with both the freshwater planning
process and the normal process in pt 1 of sch 1 will have to be fully informed as to
how matters are developing or are decided through each process to achieve the
integrated management of resources and the fundamental concept of Te Mana o te Wai
and ki uta ki tai.
74
Bay of Islands Maritime Park Inc v Northland Regional Council [2021] NZEnvC 6, [2021]
NZRMA 256 at [32].
75 At [32].
Conclusion as to how s 80A must be read
[165] I have concluded that s 80A(2)(a) should be interpreted and applied as if it
reads “a freshwater planning instrument means a proposed regional plan or regional
policy statement for the purpose of giving effect to any national policy statement for
freshwater management, subject to s 80A(3)”.
[166] Section 80A(3) establishes a mandatory obligation for a regional council to
prepare the parts of instruments that relate to freshwater through the freshwater
planning process, and all other parts through the standard process in pt 1 of sch 1.
[167] That wording is consistent with the submission made by Forest and Bird and
supported by a number of parties that s 80A(3) drives what will qualify as a freshwater
planning instrument, either in whole or in part.
[168] I thus conclude that only those parts of the proposed regional statement which
relate to freshwater could be treated as a freshwater planning instrument and so be
subject to the freshwater planning process.
Why the ORC’s interpretation and application of s 80A of the RMA was in error
[169] It was for the ORC to make decisions as to which parts of the proposed regional
statement relate to freshwater on a correct interpretation of s 80A.
[170] I am satisfied the ORC did not do so. They considered the requirement for
integrated management of resources and Te Mana o te Wai allowed them to determine
that everything in their proposed regional statement related to freshwater or was to
give effect to the National Policy Statement. For the reasons discussed, that was an
error and not an approach they were permitted to take.
[171] I am not satisfied on the evidence that the ORC adequately considered what
parts of the proposed regional statement related to freshwater and which parts did not,
as s 80A(3) required them to do.
[172] I am also not satisfied that the whole of the proposed regional statement was
prepared to give effect to the National Freshwater Policy or the 2014 National Policy
Statement on Freshwater Management as amended in 2017. This is not surprising.
The ORC had committed to significant work, consultation and investment in preparing
a new proposed regional statement on the recommendation of the Minister for the
Environment in November 2019. Nevertheless, they were aware of the Amendment
Bill and a new freshwater planning process as they made submissions to the
Environment Committee in 2019.76 They were aware of the National Freshwater
Policy that came into effect on 3 September 2020.
The Court’s task
[173] A number of parties, including the ORC, presented submissions on the basis
the Court would effectively review in detail the whole of the proposed regional
statement and decide which parts could be treated as a freshwater planning instrument.
[174] That would have been a daunting task. The proposed regional statement is 220
pages long, has five parts and covers nine domains and topics.
[175] In its submissions, the CRC acknowledged:
… the issues raised in this case require a detailed understanding of the function
and design of regional planning documents, and deal with difficult tensions
between many different interests.
[176] Rayonier and Ernslaw submitted it is for the ORC to review the regional policy
statement and determine which provisions meet the requirements of s 80A(2) correctly
applied and which do not. They submitted this is because the process is likely to be a
highly technical and detailed one. They submitted it might also necessitate some
restructuring of the proposed regional statement or rewriting of certain provisions.
[177] In essence, the ORC, in these proceedings, sought a declaration as to how s
80A is to be interpreted and applied. Section 80A(3) makes it clear that the regional
council must satisfy itself which parts of its proposed planning document relates to
freshwater in applying s 80A.
76 See above at [142].
[178] Appeals from Environment Court decisions come to the High Court as to
alleged errors of law.77 There is limited scope under the RMA for decisions made by
regional councils or other territorial authorities to come before the High Court through
judicial review.78 In such proceedings, it is well established that it will not be for the
High Court to make decisions as to the merits of the council’s decision on the particular
issue before it. The High Court’s function is to identify whether there has been an
error of law. If there has been an error, the High Court may remit the issue back to the
territorial authority that made the relevant decision or to the Environment Court so
they can make a decision on the merits applying the law correctly.
[179] That is the approach which should be adopted in this case. It is the ORC, not
this Court, who must exercise their statutory obligation to determine which parts of
the proposed regional statement relate to freshwater under a correct interpretation of s
80A.
[180] Most of the parties however made it clear that, through these proceedings, they
are wanting the Court to provide clarity as to how s 80A is to be applied, clarity which
is lacking in the legislation as it stands.
[181] The key issue is what “relates to freshwater” means and how is that
qualification to be met.
[182] As referred to earlier, through their differing submissions, a number of parties
suggested different ways in which the words “relates to freshwater” might be
interpreted by regional councils in formulating their plans or policy statements and
deciding what parts should be part of a freshwater planning instrument and so subject
to the freshwater planning process.
77 RMA, s 299.
78 See s 296.
The Court’s view as to how the words “relates to freshwater” are to be
interpreted and applied
[183] In the
New Zealand Oxford Dictionary, “relate to” is said to mean “have
reference to; or concern;79 and “concern” means be relevant or important to, relate to,
or be about.80
[184] Because the meaning of the legislation is unclear, the interpretation cannot be
based on just what might be considered the ordinary meaning of “relate to”.
[185] In
Auckland Harbour Board v NZ Harbours IUOW, the Court of Appeal, on a
case stated, had to decide whether a dispute over manning levels in tugs was “related
to” a collective agreement under s 116(1)(b) of the Industrial Relations Act 1973 and
so within the jurisdiction of the Arbitration Court.81
[186] The Court of Appeal said:82
So far as a paraphrase of the words “related to” in the particular context may
be of any help, we think that they require a sufficiently direct connection
between any matter of dispute and matters dealt with in the award or collective
agreement. Very often it can only be a question of fact and degree. This head
of jurisdiction is obviously wider than mere interpretation of the instrument,
which is separately referred to in the standard dispute of rights clause.
[187] Of significance, the Court of Appeal decided the dispute did relate to the
collective agreement, not just by deciding how “related to” might be paraphrased but
by considering the issue in relation to the facts before it.
[188] In
Mercury NZ Ltd v The Waitangi Tribunal, the High Court was concerned
with a judicial review challenge to a preliminary determination of the Waitangi
Tribunal proposing to exercise the resumption power as to two significant areas of
land.83 Section 8A(2) of the Treaty of Waitangi Act 1975 provided that the Waitangi
Tribunal can recommend that land or an interest in land transferred to a State enterprise
79 Graeme Kennedy and Tony Deverson (eds)
The New Zealand Oxford Dictionary (Oxford
University Press, Melbourne, 2008) at 948.
80 At 225.
81
Auckland Harbour Board v NZ Harbours IUOW (CA217/86), 28 October 1987.
82 At 969.
83
Mercury NZ Ltd v The Waitangi Tribunal [2021] NZHC 654, [2021] 2 NZLR 142.
be returned to Māori ownership where a claim
relates in whole or in part to land or an
interest in land to which the section applies. In the High Court, Cooke J said the
Waitangi Tribunal had analysed the requirement that a well-founded claim “relates to”
land covered by these provisions in detail. The Tribunal referred to previous dicta to
the effect that legislation concerning the Treaty should not receive a narrow
interpretation. It concluded the provisions gave a broad jurisdiction to provide a
remedy for the adverse consequences of all land-based claims, whether or not the well-
founded claims concerned the land in question.84
[189] In discussing how the words “relates to” were to be considered, Cooke J said:
[69] I accept without hesitation that the provisions should receive a broad
and unquibbling interpretation. The dicta along these lines strike me as a
manifestation of the requirement that the text of an enactment should be
interpreted in light of its purpose. It can be presumed that Parliament intended
to give full effect to the principles of the Treaty when enacting Treaty-related
provisions, particularly provisions intended to remedy Treaty breaches. The
ultimate question is what the particular purpose of these provisions is in light
of that presumption.
[70] One begins with the text of the enactment. On its natural reading the
requirement that the claims “relates to” the land means that the claims
concern
that land. Moreover, the fact that the enactment directs the “return” of the land
would suggest that the claim concerning the land would be about the
circumstances under which the land left the possession of Māori, thus
providing the justification for the land to be returned. The requirement that the
claim be “well-founded” essentially means that the Tribunal is upholding the
claim giving rise to the remedy of return of the land. The three concepts –
“well-founded” claims, “relates to”, and “return” – are inherently interlinked.
…
[72] … I do not agree that the true scope of the provisions turns on the literal
interpretation of the words that have been concentrated upon. I do not agree
that the words “relates to” mean something substantially different from “in
respect of” as the Tribunal held, and as the Muriwhenua Land Tribunal said.
There are various verbal formulations that could have been used: “relates to”,
“in respect of”, “concerning,” “over” or even just “about”. All these phrases
have somewhat elastic meanings that depend on the circumstances of their use
to gain any more precise content. It is the circumstances of their use in these
provisions in light of the other words of the sections and the purpose of the
provisions as a whole that is decisive in my view.
(footnotes omitted)
84 At [52].
[190] Cooke J then discussed various aspects of the background to the passing of the
relevant legislation including other legislation which led him to the conclusion that,
for land to be caught on the basis it was related to a claim before the Tribunal, it had
to have been land that was wrongly taken from the Māori owners by the Crown. This
judgment illustrates how the meaning of “relates to” has to be established in light of
the purpose and context in which the words were used and, importantly, the factual
context of the case.
[191] The words “relates to freshwater” must be interpreted having regard to the
purpose for which s 80A was enacted. That purpose was to address the decline in
freshwater quality in New Zealand.85
[192] Section 80A(3) drives the interpretation of s 80A. Because of this, parts of a
regional policy statement will qualify to be part of a freshwater planning instrument
pursuant to either s 80A(2)(a) or (b) if they directly relate to the maintenance or
enhancement of the quality or quantity of freshwater.
[193] In accordance with s 80A(2), parts of the proposed regional statement may
relate to freshwater management in the manner required to be part of a freshwater
planning instrument either through the way those parts give effect to the National
Freshwater Policy or through otherwise relating to freshwater. Parts that give effect
to the National Freshwater Policy will only qualify if they are giving effect to those
parts of the National Freshwater Policy that directly relate to the maintenance or
enhancement of freshwater quality or quantity.
[194] As to this, the ORC will have to first determine which parts of the National
Freshwater Policy are directly concerned with the quality or quantity of freshwater as
defined in s 2 of the RMA. The ORC’s concern will be with those parts of the policy
which relate directly to matters impacting on the quality or quantity of freshwater,
including groundwater, in lakes, rivers, wetlands or in estuaries that are part of the
receiving environment.
85 See above at [126]; Resource Management Amendment Bill 2019 (180-1) (explanatory note) at 5.
[195] A number of provisions in the National Freshwater Policy do not relate directly
to the quality or quantity of freshwater. A number of provisions are aspirational in
referring to the benefits that might be obtained from improving freshwater quality, for
example, reference to the obligations in Te Mana o te Wai to prioritise the health and
wellbeing needs of people.86
[196] There are parts of the National Freshwater Policy, particularly the fundamental
concept of Te Mana o te Wai and ki uta ki tai, that refer to the values tangata whenua
attach to the quality of freshwater and the need for those values to be recognised in the
management of freshwater issues.87
[197] There are parts of the National Freshwater Policy that impose administrative
obligations on regional councils that will assist in maintaining water quality but which
might not have to be referred to in a regional policy statement.88
[198] There are parts of the National Freshwater Policy that, on their face, do not
purport to be directly related to maintaining or improving water quality or quantity.89
[199] Conversely, parts of the National Freshwater Policy do clearly relate directly
to freshwater quality and require regional councils to maintain and enhance the quality
of freshwater. For instance, the establishment of freshwater management units for its
region90 and the ensuing provisions as to how these units are to operate and be utilised
to maintain and improve water quality.91 There can be little doubt that the Minister, in
recommending to the Governor-General that the National Freshwater Policy be
published in September 2020, intended that regional councils would give effect to such
parts of the National Freshwater Policy to facilitate that happening without delay.
Insofar as a regional policy statement does so, those parts would be subject to the
freshwater planning process.
86 National Freshwater Policy, cl 1.3(4).
87 Clause 3.2.
88 See cls 3.23 (mapping and monitoring of natural inland wetlands); 3.27 (monitoring primary
contact sites); 3.29 (setting up freshwater accounting systems) and 3.30 (assessing and reporting).
89 For example, cl 3.33 applies only to specified vegetable growing areas as identified in an appendix
to the National Freshwater Policy.
90 National Freshwater Policy, cl 3.8.
91 Clauses 3.7(2), 3.9−3.17, 3.22−3.24, 3.28 and 3.32.
[200] The National Freshwater Policy is concerned with the quality of freshwater and
the effects on the receiving environment of freshwater on a whole of catchment basis.
This does not mean that any part of a regional policy statement concerned with the
catchment for or receiving environment from freshwater will relate to freshwater for
the purpose of s 80A. It will be only to the extent parts of the proposed regional
statement regulate activities in the catchment or receiving environment, because of
their effect on the quality or quantity of freshwater, that policies or objectives for the
catchment or receiving environment will relate to freshwater for the purposes of s 80A.
[201] It is not for this Court, in the context of these proceedings, to decide which
parts of the National Freshwater Policy relate to freshwater management in the manner
required for the purposes of applying s 80(2). The ORC will however have to make
that determination when considering whether any particular part of the proposed
regional statement relates to freshwater through the way it gives effect to the National
Freshwater Policy.
[202] In accordance with s 80A(2)(b), there may potentially be other ways in which
provisions in the proposed regional statement can qualify to be part of a freshwater
planning instrument. For that to be so, the ORC will have to satisfy itself that those
parts relate directly to matters that will impact on the quality and quantity of
freshwater, including groundwater, lakes, rivers and wetlands. The ORC will also
have to satisfy itself that the parts are not concerned with sea water or are part of a
proposed regional coastal plan or a change or variation to that plan.92
[203] Consistent with the purpose of the Amendment Act and participatory rights
under the RMA, in applying s 80A, the starting point must be that all of the proposed
regional statement will be subject to the normal planning process set out in pt 1 of sch
1 of the RMA. It will be only those parts of the proposed regional statement that
directly relate to freshwater management, in the manner just discussed, that can be
parts of a freshwater planning instrument and so subject to the freshwater planning
process.
92 With reference to s 80A(8) of the RMA.
[204] With such an approach, the ORC could not decide that, because there is a
provision that relates to freshwater within a specific chapter, the whole of that chapter
should be treated as relating to freshwater. Conversely, there may be a chapter which,
to a significant extent, relates to freshwater. That is likely to be true as to the chapter
on land and water. Nevertheless, there may be policies, objectives or rules in a land
and water chapter that do not relate to freshwater. Such parts of that chapter, in terms
of s 80A, could not be treated as part of a freshwater planning instrument.
[205] The national planning standards require that there be a chapter in a proposed
regional statement on urban form and development. In that chapter there may be
objectives, policies or rules that are directly for the purpose of managing freshwater.
It will be only those parts of a topic chapter on urban form and development that relate
directly to freshwater management that can be part of a freshwater planning
instrument.
[206] Parts of a proposed regional statement cannot be treated as parts of a freshwater
planning instrument simply because there is some connection to freshwater through
the concepts of Te Mana o te Wai, ki uta ki tai or the integrated management of natural
and physical resources. To hold otherwise would be contrary to Parliament’s intention
in s 80A and pt 4 of sch 1 to establish a dual planning process where only parts of a
regional policy statement directly relating to freshwater would be subject to the
freshwater planning process.
[207] This does not mean that the fundamental concept of Te Mana o te Wai, ki uta
ki tai and integrated management of natural resources can be disregarded either in the
planning process in pt 1 of sch 1 or in the freshwater planning process.
[208] They will be fundamental to regional councils in the formulation of a proposed
regional policy statement and to the Environment Court when it might have to consider
issues arising out of a regional policy statement on appeal. To the extent those
principles are relevant to matters that are not part of the freshwater planning process,
those who consider such principles have not been adequately recognised by a regional
council will have full rights of appeal to the Environment Court. That Court is a
specialist tribunal, well equipped to recognise the importance of integrated
management of natural and physical resources and the fundamental concept of Te
Mana o te Wai. Submitters would not have such rights of appeal if the matters they
are concerned with are to be subject to the freshwater planning process.
[209] It will be for the ORC to decide, in the particular circumstances it faces and
with the report if has already prepared, how it recognises s 80A(3) and prepares those
parts that do relate to freshwater as a freshwater planning instrument.
[210] As the Ministry for the Environment foreshadowed, it may be that some
regional councils will prepare a specific regional freshwater plan or a plan change that
only gives effect to the National Freshwater Policy so that all provisions in such
documents will go through the freshwater planning process.93
What, if any, declarations should be made in light of the earlier conclusions in
this judgment?
[211] In its statement of claim, the ORC sought the following declarations:
1. The Proposed Otago Regional Policy Statement 2021 is a freshwater
planning instrument under section 80A(1)−(3) of the Resource
Management Act 1991.
2. The Otago Regional Council may continue to prepare the Proposed Otago
Regional Policy Statement 2021 in its entirety under the freshwater
planning process in Subpart 4 of Part 5 and Part 4 of Schedule 1 of the
Resource Management Act 1991.
3. In the alternative to (1) and (2), if the Court finds that Otago Regional
Council may not continue to prepare part of the Proposed Otago Regional
Policy Statement 2021 under the freshwater planning process in Subpart
4 of Part 5 and Part 4 of Schedule 1 of the Resource Management Act
1991, then:
(a) That part must be prepared in accordance with Part 1 of Schedule 1
of the Resource Management Act 1991; and
(b) That part must be removed from the freshwater planning process in
Subpart 4 of Part 5 and Part 4 of Schedule 1 of the Resource
Management Act 1991 and further prepared in accordance with Part
1 of Schedule 1 of the Resource Management Act 1991; and
(c) That part need not be re-notified under Schedule 1 of the Resource
Management Act 1991; and
93
A new Freshwater Planning Process: Technical guidance for councils, above n 40, at 13.
(d) The remainder of the Proposed Otago Regional Policy Statement
2021 must continue to be prepared, and need not be re-notified under
the freshwater planning process in Subpart 4 of Part 5 and Part 4 of
Schedule 1 of the Resource management Act 1991.
4. Such or further order as the Court thinks fit.
[212] In its submissions, the ORC sought the declarations in 1 and 2. With this
judgment, the Court will not make those declarations. The ORC did not present
detailed submissions in support of the latter alternative declarations.
[213] Forest and Bird submitted that “the declaration sought by ORC” be declined.
They submitted only part of the proposed regional statement that related to freshwater
was the land and freshwater domain chapter. The balance of the proposed regional
statement, they submitted, had to go through the process in pt 1 of sch 1.
[214] Port Otago submitted that the response to questions formulated by the ORC
should be:
(a) The proposed regional statement is not a freshwater planning instrument.
It contains policies that do not relate to freshwater, including policies
relating to coastal water.
(b) The parts of the proposed regional statement that are not a freshwater
planning instrument are those parts which either:
(i) are not for the purpose of giving effect to a national policy statement
for freshwater management; or
(ii) do not otherwise relate to freshwater.
[215] Oceana Gold submitted the Court should make a declaration that the proposed
regional statement was a freshwater planning instrument under s 80A(2)(b) and not s
80A(2)(a), and should identify, as required by s 80A(3), those parts of the proposed
regional statement that relate to freshwater and are therefore to proceed under the
freshwater planning process, and those that do not must be progressed using the
standard process.
[216] The QLDC submitted the first and second declarations should be declined. It
submitted the third declaration should also be declined given the ORC had provided
no details on what statutory process would be followed.
[217] The Dunedin City Council and Waitaki District Council submitted that “the
declaration” sought by the ORC should not be issued. They submitted the Court could
declare that only the parts of the proposed regional statement which they had referred
to relate to freshwater, and the balance of the proposed regional statement needs to
follow the normal pt 1 of sch 1 procedure in the RMA for its development.
[218] Rayonier and Ernslaw submitted that declarations 1 and 2 should be declined.
They supported declaration 3 with the proviso that, if changes were to be made to the
part of the proposed regional statement that is a freshwater planning instrument, then
that must be publicly notified in accordance with s 80A(4)(a) of the RMA. If changes
are made to that part of the proposed regional statement that is not a freshwater
planning instrument, then that must be publicly notified in accordance with cl 5 of sch
1 of the RMA.
[219] Ngā Rūnanga submitted only declarations 1 and 2 should be made.
[220] The CRC, given its neutral position, said it was not making any submissions
as to the merits (or otherwise) on the declaration sought.
[221] The Minister, also adopting a neutral position, made no submissions as to what,
if any, declarations might be appropriate.
[222] The submissions as to declarations from a number of parties were premised on
the basis the Court would be deciding which parts of the proposed regional statement
related to freshwater and which did not. That task remains with the ORC.
[223] Advice to the ORC from its officers for the meeting where they considered the
status of the proposed regional statement and whether it should be publicly notified
was that “[w]hen the [proposed regional statement] is publicly notified, the public
notice must state whether Council [sic] is satisfied that the document is a freshwater
planning instrument. This dictates the process or processes used for hearing and
determining submissions on the document.”
[224] The proposed regional statement was publicly notified on Saturday 26 June
2021. The notice advised that submissions could be made but had to be received by
3.00 pm on 3 September 2021. Submissions were received from 1,463 parties. In her
affidavit, the manager of policy and planning for the ORC advised the primary
submissions covered “every aspect of the proposed regional statement” and there are
multiple parties who have submitted in support or opposition to the proposed regional
statement in its entirety.
[225] A summary of decisions requested was notified on 30 October 2021. A further
59 submissions were received as to the summary of decisions requested.
[226] On 11 November 2021, the ORC advised the Chief Freshwater Commissioner
of the names of its two nominees for appointment to the freshwater hearings panel.
On 17 December 2021, the Chief Freshwater Commissioner appointed four of the five
members of the freshwater hearings panel. The fifth member, the tangata whenua
nominee, was unavailable to be appointed at that time and was appointed on 17
January 2022.
[227] Section 80A(3) requires the ORC to prepare the parts that do not relate to
freshwater in accordance with pt 1 of sch 1. This process has time limits for steps that
have to be taken in the planning process. The ORC does have power to extend time
limits, as provided for in ss 37 and 37A of the RMA.
[228] In accordance with this judgment, only parts of the proposed regional statement
that are to be a freshwater planning instrument will be subject to the freshwater
planning process.
[229] The ORC will now have to reconsider and decide which parts of the proposed
regional statement relate to freshwater for the purposes of s 80A. Section 80A(3)(a)
requires that those parts must be prepared in accordance with subpt 4 of pt 5 and pt 4
of sch 1 of the RMA. Section 80A(4) requires the regional council to publicly notify
the freshwater planning instrument. The freshwater planning process begins with
public notification of the freshwater planning instrument.94
[230] There has been no valid determination as to which parts of the proposed
regional statement are parts of a freshwater planning instrument so there has been no
notification of a freshwater planning instrument to begin the freshwater planning
process set out in pt 4 of sch 1. Those parts of the proposed regional statement that
will not be part of a freshwater planning instrument have been publicly notified, and
do not need to be re-notified. They have not been processed in accordance with the
normal pt 1, sch 1 process because of the ORC’s decision to treat the whole of the
proposed regional statement as a freshwater planning instrument, and because of the
uncertainty associated with these proceedings.
[231] The declarations I make are as follows:
(a) The Otago Regional Council’s determination that the whole of the
proposed Otago Regional Policy Statement 2021 is a freshwater planning
instrument under s 80A(1)−(3) of the Resource Management Act 1991 was
in error and not in accordance with the requirements of s 80A.
(b) The Otago Regional Council must now satisfy itself as to which parts of
the proposed regional statement relate to freshwater and so constitute a
freshwater planning instrument through giving effect to the National
Policy Statement for Freshwater Management 2020 or otherwise relating
to freshwater.
(c) Following its determination as to that, the Otago Regional Council must
continue with the preparation of those parts of the plan that are not part of
the freshwater planning instrument, in accordance with the process set out
in pt 1, sch 1 of the RMA.
94 RMA, sch 1 cl 37.
(d) Those parts of the proposed regional statement that are determined by the
Otago Regional Council to be parts of a freshwater planning instrument
are to be publicly notified as a freshwater planning instrument, and are to
be subject to the freshwater planning process in subpt 4 of pt 5 and pt 4 of
sch 1 of the RMA 1991.
Costs
[232] The ORC brought these proceedings to obtain clarification from the Court as
to whether the basis on which it had determined the whole of its proposed regional
statement as being a freshwater planning instrument was in accordance with s 80A of
the RMA. They did this because of the acknowledged lack of clarity in the legislation
as to how it was to be applied. A number of the parties acknowledged the responsible
way the ORC had put the matter before the Court for consideration and did not seek
costs. The proceedings are such that costs should lie where they fall.
Concluding summary
[233] On 26 June 2021, the Otago Regional Council notified the whole of its
proposed regional statement as a freshwater planning instrument to be subject to the
freshwater planning process which became part of the RMA in 2020. It made this
determination to achieve integrated management of all natural resources and in
accordance with the concept of Te Mana o te Wai and ki uta ki tai in the National
Policy Statement for Freshwater Management that came into effect in September
2020. The council’s determination was supported by Otago iwi. It was challenged by
a number of district councils, Forest and Bird, Port Otago, Oceana Gold and two major
forestry companies.
[234] In this judgment I have held that, with the 2020 amendment to the Resource
Management Act, Parliament contemplated there would be dual planning processes as
to matters that the Otago Regional Council had to deal with in its proposed regional
statement. Only those matters that relate to freshwater would be subject to the
freshwater planning process with the more limited rights of appeal associated with
such a process.
[235] With the legislation, there is uncertainty as to what “relates to freshwater”
means and thus uncertainty as to which parts of the proposed regional statement could
be a freshwater planning instrument and so subject to the freshwater planning process.
[236] In this judgment I have held it is only those parts of the proposed regional
statement that relate directly to the maintenance or enhancement of freshwater quality
or quantity that can be treated as parts of a freshwater planning instrument. The whole
proposed regional statement could not be treated as a freshwater planning instrument
and so subject to the freshwater planning process on the basis this was necessary to
achieve integrated management of resources or recognition of Te Mana o te Wai and
ki uta ki tai. There was thus an error of law in the Otago Regional Council deciding
that the whole of its recently notified proposed regional statement was a freshwater
planning instrument to be dealt with under the freshwater planning process.
[237] The Otago Regional Council had notified the whole of its proposed regional
policy statement in the manner required by the RMA. There have been a great number
of submissions to the regional council about many aspects of the regional policy
statement. I have held that the council need not renotify those parts of its proposed
regional statement which, on reconsideration in accordance with this judgment, it
decides are not parts of a freshwater planning instrument. Those parts will be subject
to the normal planning process provided by the RMA with existing rights of appeal to
the Environment Court.
[238] The Court has made declarations that:
(a) the Otago Regional Council’s determination, that the whole of its proposed
regional policy statement was a freshwater planning instrument, was in
error;
(b) the Otago Regional Council must now reconsider the proposed regional
policy statement and decide which parts of it do relate to freshwater in the
way the legislation requires for those parts to be subject to the freshwater
planning process; and
(c) the Otago Regional Council will then have to notify those parts of the
proposed regional statement which are to be treated as a freshwater
planning instrument and begin again the freshwater planning process as to
those parts.
Solicitors:
Ross Dowling Marquet Griffin, Dunedin
P D Anderson, Royal Forest and Bird Protection Society of New Zealand
L A Andersen QC, Barrister, Dunedin
P E M Walker, Environment Law, Dunedin
S W Christensen, Barrister, Dunedin
M R Garbett and R A Kindiak, Anderson Lloyd, Dunedin
R H Dixon, Crown Law Office, Wellington
K T Dickson, Wynn Williams, Christchurch
S J Scott, Simpson Grierson, Christchurch
S R Gepp, Barrister, Nelson
K L Hockly, Lane Neave, Queenstown-Lakes
M A Baker-Galloway, Anderson Lloyd, Queenstown-Lakes.
From:
Hearings Administrator <[email address]>
Sent:
Thursday, 28 July 2022 9:45 am
To:
Hearings Administrator
Subject:
Minute from Judge LJ Newhook, Chief Freshwater Commissioner- High Court
decision declaring certain matters about the PORPS
Attachments:
Chief Freshwater Commissioner Minute 27 July 2022 PDF.pdf
Morena,
Please find the most recent minute from Judge LJ Newhook, Chief Freshwater Commissioner regarding the
High Court decision declaring certain matters about the PORPS attached to this email.
Thank you.
Regards,
Hearings Administrator
[email address]
1
From:
RPS <[email address]>
Sent:
Thursday, 27 October 2022 1:38 pm
To:
Hearings Administrator
Subject:
pORPS21 - Minute 3
Attachments:
Minute 3 - Decision re Evidence Timeline.pdf
Please find attached the Minute 3 – Decision of Hearing Commissioners on request for amendment to evidence
timetable.
Best regards,
Myriam Lea
Myriam Lea
HEARINGS ADMINISTRATOR
P
| M
@orc.govt.nz
www.orc.govt.nz
Important notice
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1
Otago Regional Council
Proposed Otago Regional Policy Statement 2021
(excluding parts determined to be a freshwater planning instrument)
DECISION OF HEARING COMMISSIONERS
on request for amendment to evidence timetable
[Minute 3]
INTRODUCTION
1. By memorandum dated 17 October 2022, Oceana Gold (New Zealand) Limited sought a
direction that the evidence timetable be extended to account for the Otago Regional Council
(ORC) filing its supplementary evidence late.
2. The Hearing Commissioners, by Minute 2 dated 21 October 2022, invited feedback from the
parties. The time for receiving that feedback was set at 5.00pm Wednesday 26 October
2022.
3. When the period for lodging feedback expired, 23 parties had responded in the affirmative
to the requested amendment. No party had opposed the request.
CONSIDERATION
4. The Hearing Panel has carefully considered the implications of the delay in ORC publishing
its completed supplementary evidence on its website and of the amendments sought to the
timetable for the conduct of the hearing and the statutory date by which a decision on
submissions must be issued by the Council.
5. The requested amendment, we note, extended the overall date by which all evidence is to
be lodged with Council by three working days. In the circumstances of the request, we do
not believe this will give rise to any detrimental effect on the hearing which is scheduled to
commence on Monday 23 January 2023.
DECISION
6. The timetable for the lodging of evidence with Council, and its publication on Council’s
website, is hereby amended as follows:
a. All evidence in chief including expert evidence received by ORC by Wednesday 23
November 2022
b. Evidence in chief available on ORC website by Wednesday 30 November 2022
c. Any Rebuttal evidence received by ORC by Wednesday 14 December 2022
d. Rebuttal evidence available on ORC website by the end of Monday 19 December 2022
Ron Crosby for and on behalf of the Panel
27 October 2022
