Deep in Southland a furore has erupted between Southland Federated Farmers and Fish & Game, and now the Government has stepped in announcing an intention to further reform the RMA. Federated Farmers have encouraged its members to restrict fishing access over their land and called for Fish and Game to be stripped of its advocacy functions following a recent Court of Appeal judgment on a rule on permitted discharges to water in the Southland proposed Water and Land Regional Plan.
The Court of Appeal has found that Environment Southland’s proposed permitted activity standards for discharges to water did not satisfy the requirements of s 70 of the RMA and, as a consequence, incidental discharges, for example discharges of contaminants such as sediment, may require a resource consent. This will have wide-felt consequences for existing farming activities.
Unsurprisingly the decision has generated significant angst for the farmer community, with the prospect of requiring further resource consents to authorise ongoing farming activities.
Background
Section 70 of the RMA provides that a regional council can only make a rule permitting the discharge of contaminants to water, or to land where the contaminant may enter water, if it is satisfied that such discharges will not (after reasonable mixing) result in specified adverse effects in the receiving waters such as significant adverse effects to aquatic life.
Rule 24 of the proposed Regional Plan purported to permit incidental discharges from farming and farming related activities, such as cultivation and wintering of cattle in pasture, where the discharge met the standards listed within the rule. These permitted activity standards simply replicated those contained in s 70 itself.
Fish & Game and Forest and Bird appealed Rule 24 to the Environment Court. The Environment Court found it was highly likely that the result of discharges of contaminants, either by themselves or in combination with other contaminants, would have significant adverse effects on aquatic life. Because of that, the Environment Court was not persuaded that Rule 24 fell within the permissible scope of a permitted discharge under s 70. However, the Environment Court gave Southland Regional Council the opportunity to call expert evidence on the likelihood of the effects of future discharges of contaminants and their significance on aquatic life and suggested that if issues with the rule could not be overcome, then an appropriate way forward would be reclassifying such incidental discharges as a controlled activity.
High Court decision
The Regional Council, Federated Farmers, Fonterra, and DairyNZ appealed the Environment Court’s decision to the High Court. The High Court supported the Environment Court’s view that further expert evidence was required before the issue of whether Rule 24 could satisfy the s 70 restriction was finally decided. It made the following points:
The language of s 70 requires the Regional Council to be satisfied “before” including a rule, indicating the need for an inquiry during the planning process into the effects of the discharges. It would be overly burdensome on Regional Council officers to determine on a case-by-case basis after Rule 24 was included in the Regional Plan whether or not a discharge gives rise to the specified adverse effects – being precisely what s 70 tries to avoid.
From a plan drafting perspective, compliance with s 70 is not achieved by simply reciting the s 70 requirements in a rule.
Reclassifying the incidental discharges as a controlled activity as suggested by the Environment Court would be inappropriate. The Environment Court only had scope to approve Rule 24, or to amend it as sought by another party. Any other change needed to be advanced through a separate process under the RMA; namely s 293.
Court of Appeal decision
The Regional Council appealed to the Court of Appeal. The Court of Appeal generally upheld the lower Courts’ findings and ruled that s 70 mandates an outcome that must be assured prior to a rule’s inclusion in the Regional Plan. That requires an evaluative assessment. The Court noted that the statutory scheme of the RMA requires evaluation by councils of the efficiency and effectiveness of proposed rules, and that the standard of being “satisfied” is high (which interestingly it noted is the strongest decisional verb in the RMA). It rejected the Regional Council’s submission that there could be an assumption of compliance with Rule 24 by those discharging contaminants.
Government response
The Government has been quick to respond by announcing that the requirements of s 70 will be clarified in the second RMA Amendment Bill, which it has promised to introduce before Christmas. Hon Todd McClay says that these decisions threaten making the law unworkable, and the amendments will “safeguard permitted activities” and “produce clear rules that unlock the double dividend of higher growth and productivity alongside positive environmental outcomes”. Of note, this would be the first amendment to s 70 since the passage of the RMA in 1991.
This is indicative of this Government’s focus on removing the “red and green tape” for the primary sector, and its willingness to legislate following what it considers to be problematic judicial decisions – as has also been demonstrated through the Marine and Coastal Area (Takutai Moana) (Customary Marine Title) Amendment Bill, which explicitly seeks to override aspects of recent court decisions.
The second RMA Amendment Bill keeps expanding in its scope and we eagerly await its tabling in Parliament. In the meantime, some anglers may need to take a longer route to their favourite fishing spot.
If you have any questions about this series of court decisions, please get in touch with a member of our team.