Ngāti Kahungunu Iwi Inc v The Hawkes Bay Regional Council
Ngāti Kahungunu Iwi (“Ngāti Kahungunu“) appealed to the Environment Court against the decision of the Hawke’s Bay Regional Council (“HBRC“) on Objectives 21 and 22 of the Hawke’s Bay Regional Resource Management Plan – Land Use and Freshwater Management (“Regional Plan“), as amended by Plan Change 5 (“PC 5“).
The notified version of Objective 21 provided for no degradation in water quality in the Heretaunga and Ruataniwha Aquifers. Objective 22 provided for “the maintenance or enhancement of groundwater quality in unconfined or semi-confined productive aquifers in order that it is suitable for human consumption and irrigation without treatment, or after treatment where this is necessary because of the natural water quality.”
In the decisions version of PC 5, Objective 21 was deleted and Objective 22 was amended to set an objective for aquifers generally, to read “the groundwater quality in the Heretaunga Plains and Ruataniwha Plains aquifer systems and in unconfined or semi-confined productive aquifers is suitable for human consumption and irrigation without treatment, or after treatment where this is necessity because of the natural water quality.”
Ngāti Kahungunu’s position
Ngāti Kahungunu sought that the notified version of Objectives 21 and 22 was reinstated into PC 5. Its appeal was based on two key arguments:
- The decisions version of PC 5 allowed for degradation which created an internal inconsistency with Policy 17 of the Regional Plan, which requires maintenance of the existing quality in the aquifers.
- The decisions version of PC 5 was inconsistent with section 6(e) of the Resource Management Act 1991 (“RMA“), which requires regional councils to recognise and provide for the relationship of Maori and their culture and traditions with their ancestral lands, water, sites, waahi tapu and other taonga. Three tangata whenua witnesses gave uncontested evidence which established that the water quality of the catchment had degraded over time, and that the quality of the water was intrinsically tied with the hauora or wellbeing of Ngāti Kahungunu. It was contended that the degradation of the water affected Ngāti Kahungunu’s way of life, given the intrinsic relationship of the water with the Iwi.
HBRC’s reasons for deleting Objective 21 were twofold:
- The wording “no degradation” was absolute, and would be impossible to achieve.
- Due to the time lag between cause and effect (ie contaminants released into groundwater may not have a contaminating effect at another point until years later), it would not be possible to connect a particular effect to a particular cause. HBRC pointed out that implementing the “no degradation” objective would require regional plans to limit or prevent any activity which might result in contaminants entering groundwater. Taken to the extreme, this would be a prohibition on all farms, horticulture and even native bush, all of which leach nitrogen into the soil which inevitably reaches groundwater. HBRC considered it was setting a pragmatic and practical objective based on achievable water quality.
Environment Court decision
The “unders and overs” approach to “overall quality”
A significant matter for the Court was that PC 5 required maintenance of the overall quality of freshwater within the Hawke’s Bay region. (This is consistent with Objective A2 of the National Policy Statement for Freshwater Management 2014 (“NPSFM“), which requires that the overall quality of fresh water within a region is maintained or improved.) HBRC contended that this mandated an “unders and overs” approach, meaning that the deterioration of water quality in one area or waterbody could be tolerated, so long as there is a matching improvement in water quality somewhere else.
The Court was unconvinced with this reasoning, considering the “unders and overs” approach to be inconsistent with both the “unqualified function” imposed on regional councils in section 30(1)(c)(ii) of the RMA, to control the use of land for the purpose of “the maintenance and enhancement of the quality of water in water bodies,” and the requirement in section 69 that regional councils “shall not set standards in a plan which result, or may result, in a reduction of the quality of the water in any waters…unless it is consistent with the purpose of this Act to do so.”
Furthermore, the Court considered that Objective A1 of the NPSFM, (being to safeguard the life-supporting capacity, ecosystem processes and indigenous species including their associated ecosystems, of fresh water), was unequivocal. Although acknowledging that the use of “overall” in Objective A2 “somewhat clouded the issue,” the Court found the “unders and overs” approach was “fundamentally flawed,” and that drafting and / or interpreting the objectives in that way could result in a more degraded and unacceptable water outcome.
“Load to come” argument
The Court disagreed with HBRC’s “load to come” argument, finding that this amounted to the Council making excuses for “not trying at all” to improve water quality. Judge Thomson found that “having a sub-optimal present is not an excuse for failing to strive for an optimal (or, at least, closer to optimal) future.” Furthermore, the Court considered that “it would be irresponsible to use that as an excuse not to try to apply better standards from this point on.”
Regarding the “impossibility” argument, Judge Thompson reiterated that the possibility of an objective of maintenance or enhancement being partly unfulfilled was no excuse for not trying at all. The Court found that the Objective will still have value as a demonstration that the aspiration is to at least maintain quality and that, from now on, the planning documents will be designed to give effect to that aspiration.
Finally, the Court found the unchallenged evidence of the three tangata whenua witnesses to be directly relevant, and considered it fundamental that the quality of the water in the whenua should be, at the very least, not further degraded by anthropogenic activities in the future.
Judge Thompson considered that “nothing less than those two objectives – of protection from further degradation, and improvement over time – will suffice to recognise and provide for this issue of national importance.”
The Court allowed Ngāti Kahungunu’s appeal and reinstated the wording from the notified version of the plan (subject to a minor wording change in Objective 22 to remove the term “unconfined or semi-confined productive” aquifers.
Judge Thompson’s decision on “overall quality” and particularly his rejection of the “unders and overs” approach, has been hailed as a landmark win by environmental groups. However, his interpretation of “overall” may have far reaching consequences for uses of land which degrade waterbodies beyond their current state (notwithstanding whether the degradation is mitigated by improvement in other areas). In particular, the decision conflicts with recent national guidance provided by MfE in the National Policy Statement for Freshwater Management 2014: Draft Implementation Guide, which provides the following direction on the requirement in Objective A2 of the NPSFM to “maintaining or improving overall quality of fresh water” (emphasis added):
Objective A2 recognises that maintaining all aspects of water quality everywhere may not be possible or desirable, economically or socially. It does not require every water body to be improved in a region; some will remain in their current state (unless they are below national bottom lines or have been degraded by human activities to the point of over-allocation). The freshwater objective-setting process outlined in part CA of the NPS-FM provides a process to assist with this decision-making.
Objective A2 allows for some variability in water quality as long as the overall water quality is maintained in a region. Objective A1 must also be met. Maintaining or improving the overall quality of fresh water within a region means that water quality cannot be allowed to decline in one part of a region without equally improving it elsewhere. If a freshwater objective is set that allows for degradation from the current state, it must be offset by objectives to achieve a commensurate improvement within the region. There should be consultation with the community (including groups with a particular interest in water resources such as iwi and water users) that this is an acceptable choice for the region.
If a regional council and community decide to balance freshwater quality across a region in this way, there will be an evidential burden to show that across the region overall a balance or improvement is achieved.
While it is yet to be seen what impact the judgement will have at a national level, the debate as to what exactly is required by Objective A2 of the NPSFM may be far from over.