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Court of Appeal quashes NPS-FM exemption

In Muaupoko Tribal Authority Incorporated v Minister for the Environment [2023] NZCA 641, the Court of Appeal upheld a claim for judicial review against the National Policy Statement for Freshwater Management 2020 (NPS-FM), quashing an exemption relating to freshwater quality targets.
By Emmalene Lake, Associate at Wynn Williams.

This is a relatively rare occurrence given that national policy statements are made by ministerial decision, and there is limited ability to challenge the provisions of such a policy.

National direction (and in particular, national policy statements) sits at the top of the planning hierarchy under the RMA and must be given effect to by subordinate documents. As such, the provisions of national policy statements can have wide-ranging impacts on how people can use land and other natural resources

Background

The draft NPS-FM was proposed by the Minister in 2019 as part of the Essential Freshwater regulatory package. The NPS-FM proposed new attributes (including for dissolved inorganic nitrogen) for all freshwater bodies in New Zealand to assist in the management of freshwater pollution.

Vegetable growers in the Horowhenua and Pukekohe areas raised concerns that their activities would be unable to easily meet the proposed new attributes, particularly for dissolved inorganic nitrogen in freshwater bodies in or adjacent to their vegetable growing areas.

In response to those concerns, and after undertaking further consultation, the Minister developed an exemption.

The exemption permitted the regional councils in the Horowhenua and Pukekohe areas to set freshwater quality targets in their regional plans below the national bottom lines specified in the NPS-FM, if the bottom lines would compromise the domestic supply of vegetables and maintenance of food security for the country.

The appellant (Muaupoko Tribal Authority Inc) and cross-appellant (Te Runanga o Raukawa Inc) (Appellants) sought judicial review of the exemption, alleging that it was unlawful including because the Minister had failed to adequately consult. The High Court dismissed the applications for review, and Muaupoko and Raukawa appealed the decision to the Court of Appeal.

Although Muaupoko and Raukawa had competing cultural claims to the water bodies in the Horowhenua area, they both shared a common objective: they considered Lake Horowhenua to be central to their mana, mauri and identity, and opposed it getting less protection than other freshwater bodies in New Zealand.

Duty to consult

The Court of Appeal found that the Minister was in breach of his duty to consult on the exemption. It accepted that the Minister acted in good faith, consulted with the Appellants and, to an extent, took into account their views. Nonetheless, the Court did not consider that the further consultation undertaken in regard to the exemption was appropriate or sufficient.

The Court’s key findings included: For consultation to be adequate, the opportunity for input must be meaningful – more than mere notification is required. Those being consulted must have a reasonable opportunity to state their views and they must be properly informed about what is proposed.

The obligation to consult can trigger an obligation to start afresh and reconsult where a substantial change to the original proposal is contemplated.

Ultimately, what constitutes adequate consultation will depend on the context. In this case, acting in good faith and considering the views of the Appellants was insufficient to discharge the duty.

Relevant contextual matters included:

• The history of Lake Horowhenua, and the Appellants’ respective claims to mana whenua [land interest] and kaitiaki [guardianship], which were important given sections 6 and 7 of the RMA);

• the Appellants’ existing fishery and property rights;

• the Crown’s history of complicity in the pollution of the Lake; and

• the foundational role of Te Mana o Te Wai in the NPS-FM and, in particular, its recognition of the role of Maori in freshwater management.

Given these matters, the Court considered that there was a need for extra due diligence when undertaking the required consultation. It was not satisfied that the Appellants were given sufficient information, in sufficient time, to properly consider and to formulate their respective responses to the proposed exemption.

The Court allowed the appeals and directed the exemption clause (and Appendix 5 of the NPS-FM, which applied to the specified vegetable growing areas) to be quashed. It also directed the Minister to reconsider whether there should be an exemption for the Horowhenua and Pukekohe areas, and if so, what form it should take.

Commentary

While the decision on a specific exemption from the NPS-FM for dissolved inorganic nitrogen may on its face be relevant to a narrow audience, the Appellants achieved a rare result in having part of a national policy statement quashed and sent back to the Minister for reconsideration.

Given the increased development and use of national direction in recent years, the success in this case may lead to further litigation of this nature.

This case is also one of a number of recent cases that have emphasised the importance of proper engagement and consultation in environmental decision-making, particularly with tangata whenua.

Where cultural considerations are at play, acting in good faith and being aware of Maori interests is not enough to discharge the obligation to adequately consult.

Rather, consultation must be meaningful and must enable those potentially affected by a proposal sufficient time to consider it and to respond fully.

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