Brook Valley Community Group Inc v The Trustees of the Brook Waimarama Sanctuary Trust
[2017] NZHC 1844
•4 August 2017
IN THE HIGH COURT OF NEW ZEALAND NELSON REGISTRY
CIV 2017-442-039 [2017] NZHC 1844
BETWEEN BROOK VALLEY COMMUNITY
GROUP INCORPORATED Plaintiff
AND
THE TRUSTEES OF THE BROOK WAIMARAMA SANCTUARY TRUST & OTHERS
Defendant
Hearing: 26 July and 27 July 2017 Counsel:
S Grey for Plaintiff
B Nathan and S Galbreath for First Respondent
N Anderson, C Lenihan and R Polaschek for Second
Respondent
R Ennor for Third Respondent
P Anderson Intervener for the Royal Forest and Bird Protection
Society
A Tobeck Intervener for Te Whare O Te Kaitiaki NgahereJudgment:
4 August 2017
JUDGMENT OF CHURCHMAN J
TABLE OF CONTENTS
Introduction ..........................................................................................................[1] Background...........................................................................................................[4] The facts ..............................................................................................................[10] Quality of evidence [21] History of Regulations [26] The plaintiff ’s position .......................................................................................[28] The respondent’s position ..................................................................................[31] The interveners’ position ...................................................................................[32] Standing ..............................................................................................................[34] Is the fence predator-proof? ..............................................................................[35] The law [36] The evidence [41]
BROOK VALLEY COMMUNITY GROUP INCORPORATED v THE TRUSTEES OF THE BROOK WAIMARAMA SANCTUARY TRUST & OTHERS [2017] NZHC 1844 [4 August 2017]
Analysis [43] Does s 13 of the RMA apply? ............................................................................[45] The law [46] Submissions [55] Meaning of ‘use’ and relationship to ‘deposit’ [56] Meaning of ‘discharge of contaminant’ [59] Interpretation tools [62] Judicial review grounds .....................................................................................[76] Submissions [83] Are the Regulations repugnant to their empowering act? [85] Other elements of alleged repugnancy [90] Mandatory considerations/improper purpose [92]
Is there a fundamental right of consultation in the RMA? [99] Unreasonableness [108] Mistake of law and fact ....................................................................................[109] Conclusion......................................................................................................... [115] Remedy ..............................................................................................................[121] Costs ..................................................................................................................[122]
Introduction
[1] This case involves a challenge to the validity of the Resource Management (Exemption) Regulations 2017. It also involves disagreement between members of the Brook Valley Community Group Incorporated and the Brook Waimarama Sanctuary Trust (“the Trust”) and the Minister for the Environment as to the best way to protect and sustainably manage the publicly owned wildlife sanctuary land managed by the Trust and the native wildlife in it. The Trust proposes to drop 26.5 tonnes of baits which contain 0.02 per cent brodifacoum (“brodifacoum baits”) on the sanctuary land in an effort to eradicate invasive pests including mice, rat, stoat and possum species. Prior to the passing of the Resource Management (Exemption) Regulations 2017 the Trust had obtained a resource consent to perform an aerial drop of brodifacoum baits from the Nelson City Council. After the regulations were passed they surrendered most of the relevant resource consents and relied on the regulations to authorise the drop.
[2] The key issues for this proceeding are:
(a) whether, as a matter of fact, the sanctuary land is protected by a
“predator-proof fence” under reg 5 of the Regulations;
(b)the relationship between the Regulations (which are expressly limited in scope to s 15 of the Resource Management Act 1991) and other requirements in Part 3, including s 13, which restricts the deposit of any substance “in, on, or under the bed” of any lake or river;
(c) the validity of the Resource Management (Exemption) Regulations
2017 as amended by the Resource Management (Exemption) Regulations 2017 Amendment Regulations 2017 (together “the Regulations”) promulgated under s 360(1)(h) of the Resource Management Act 1991 (“RMA”); and
(d)whether the alleged expiry of the Code of Practice: Aerial and Hand Broadcast Application of Pestoff® Rodent Bait 20R for the Intended Eradication of Rodents from Specified Areas of New Zealand in 2010 invalidates later decisions by each of the respondents in reliance on it.
[3] While the parties initially hoped for an interim decision followed by a more comprehensive substantive one, the timing constraints involved in the proposed drop meant that the parties have agreed the substantive matter be decided urgently after a day and half of hearing. This decision has been made with this urgency in mind and is perhaps not as erudite as it otherwise might have been. I hope the parties will find it both comprehensive and helpful.
Background
[4] The plaintiff, Brook Valley Community Group (“the Group”), is an incorporated society formed on 14 March 2016 and has among its aims:
(a) “[t]o provide a point of contact for members with concerns/issues about amenity or infrastructure;” and
(b)“[t]o help ensure the security and safety of [its members’] amenities and infrastructure (access ways, parks, parking, drainage, streetscape, walking cycling etc)”.
[5] The first respondent is the Trust, a charitable body formed in 2004 and which operates the Brook Waimarama Sanctuary. The second respondent is the Minister for the Environment (“the Minister”), and whose Ministry is responsible for the RMA and the regulations made under it. The third respondent is the Nelson City Council (“the Council”), a unitary authority which is responsible for the Nelson Resource Management Plan (“NRMP”), a combined district and regional resource management plan for Nelson.
[6] The interveners are:
(a) Royal Forest and Bird Protection Society of New Zealand (“Forest and Bird”), a national non-governmental organisation which aims to protect all native species and wild places; and
(b)Te Whare o Kaitiaki Ngahere Incorporated (“Te Whare”), an incorporated society registered on 13 May 2010, which aims to promote, protect, maintain and enhance the environment and opposes aerial drops of 1080 and brodifacoum. Te Whare also represents the views of Farmers against 1080 and the Wildlands Biodiversity Management Group Incorporated.
[7] The Trust leases approximately 711 ha of public land from the Council for the purpose of developing and operating a wildlife sanctuary, known as the Brook Waimarama Sanctuary (“the sanctuary”). The sanctuary land sits at the head of the Brook Valley. It is covered in native bush and is home to a number of native birds and mammalian pest species. Adjacent to the sanctuary is the council-owned Dun Mountain Railway Walkway and the Brook Reserve, as well as private farmland owned by the Simpson family (among others).
[8] Streams on the sanctuary land form part of the headwaters of the Brook Stream. The Brook Stream from 328 Brook Street to above the Brook Motor Camp is classified in the Nelson Resource Management Plan AP28.13 as “A” grade water. Further downstream, it is classified as both C and D grades. The sanctuary land is a local purpose reserve classified for wildlife sanctuary purposes. It is mainly zoned
for conservation, but a designation for water supply purposes continues to cover the sanctuary land and its catchment. For many years a reservoir on the land provided drinking water for Nelson City but there have been no city water takes since 1987.1
[9] A predator proof fence was built around the sanctuary by Xcluder Pest-Proof Fencing Limited (“Xcluder”) between October 2014 and September 2016, in accordance with resource consents from the Council. During construction there were three significant land slips, two in the same location which required repair and replacement of up to 100 m of the fence.2 Since construction there have been three
further slips which the parties agree did not breach the integrity of the fence.3
The facts
[10] In September 2015 the Trust made an application for resource consent relating to the use of brodifacoum to eradicate mammalian pests from the sanctuary.4
This proceeded on a limited notification basis, with the Independent Commissioner requiring notification on parties affected by the effects of the activity. The affected parties listed included the Council, the adjoining landowners and eight iwi groups.5
On 11 May 2016 three resource consents were granted; two land use consents and one discharge consent issued under s 15 of the RMA. The discharge consent approved a series of three aerial drops of brodifacoum subject to 47 conditions to occur before 30 September 2017.6 The planned brodifacoum drops were postponed from 2016 to 2017.
[11] The Regulations were made under s 360(1)(h) of the RMA on 20 February
2017 by Order-in-Council following a recommendation by the Parliamentary Commissioner for the Environment in 2011 and consultation with interested parties between April and May 2016, including the Group and Forest and Bird and a recommendation by the Minister.7 Regulation 5, as amended on 2 June 2017
provides that the discharge of the RMA contaminant brodifacoum is exempt from s
1 Statement of Agreed Facts, dated 21 July 2017 at [5].
2 Affidavit of HC Dodd, 10 July 2017 at [45] – [47].
3 Agreed Statement of Facts, 21 July 2017 at [7].
4 Affidavit of HC Dodd, 10 July 2017 at annexure HCD5.
5 Affidavit of S Harris, 23 June 2017, annexure H at 11.
6 Affidavit of HC Dodd, 10 July 2017, annexure HCD6 at Appendix 2.
7 Affidavit of NR Smith, 10 July 2017 at [17] and [29].
15 of the RMA if the discharge complies with the Regulations. On 9 May 2017, in response to a notification from the Trust, the Council gave notice to the Trust approving part surrender of its resource consent as it related to the aerial discharge of brodifacoum and cancelling 44 of the 47 conditions previously imposed under s 15 of the RMA.
[12] Use of brodifacoum is subject to controls under the Hazardous Substances and New Organisms Act 1996 (“HSNO”) and the Agricultural Compounds and Veterinary Medicines Act 1997 (“ACVMA”). The specific code regulating broadcast of brodifacoum, both aerially and by hand is the Code of Practice: Aerial and Hand Broadcast Application of Pestoff® Rodent Bait 20R for the Intended Eradication of Rodents from Specified Areas of New Zealand (“the 2006 Code”) issued by the New
Zealand Food Safety Authority under the ACVMA.8 The 2006 Code was deemed to
be an approved operating plan until October 2010.9 This does not affect its validity or enforceability under ACVMA or HSNO.10 Complimentary controls exist under HSNO.11 Failure to comply with the 2006 Code is an offence under both the ACVMA12 and HSNO.13 The 2006 Code has now been replaced by Operating Plan
63: Aerial and Hand Broadcast Application of Pestoff® Rodent Bait 20R (V9014) for the Intended Eradication of Rodents from Specified Areas of New Zealand (“Operating Plan 63”) approved 27 July 2017.
[13] The Trust relies on compliance with the Regulations, the 2006 Code, the
Multispecies pest Operational Plan (MPOP) prepared in accordance with the 2006
Code14, the Assessment of Environmental Effects (AEE)15, and the other applicable
8 Affidavit of JE Hilton, 26 June 2017, annexure E.
9 Agricultural Compounds and Veterinary Medicines Amendment Act 2007, s 21.
10 See discussion at [110] below.
11 See HSNO Controls for Bait containing 0.02g/kg brodifacoum, pursuant to Hazardous
Substances (Classes 6, 8 and 9 Controls) Regulations 2001, regs 50 and 51.
12 Agricultural Compounds and Veterinary Medicines Act 1997 [ACVMA], s 55(1)(c).
13 Hazardous Substances New Organisms Act 1996 [HSNO], s 109(1)(e).
14 Affidavit of S Harris, 23 June 2017, annexure H at 4.
15 Prepared in accordance with the 2006 Code and “relevant DOC standard operating procedures, including the Brodifacoum Pesticide Information Review”. See Affidavit of HC Dodd, 10 July
2017, annexure HCD5.
legal requirements promulgated under the ACVM and HSNO to perform the aerial drop of brodifacoum before the end of August 2017.16
[14] The proposed drop involves three separate aerial drops of 10 mm (2g) Pestoff
20R rodent bait containing brodifacoum at 20 ppm (0.02g/kg) to kill the target species of mice, ship rats and Norway rats. Other mammalian pests including possums, mustelids, feral cats, pigs, deer and goats will also be killed through direct ingestion of baits or secondary poisoning.17 The three aerial applications of bait will not exceed in total 36kg/ha and 26.5 tonnes in mass. There will be a minimum two week delay between each of the three planned aerial drops.
[15] Brodifacoum is a second-generation bio-accumulative anticoagulant poison, which is approved for use in New Zealand in two prescribed formulations as a vertebrate toxic agent (“VTA”) for rodent control. Only the proposed Pestoff 20R
0.02g/kg bait formulation is approved for aerial use in New Zealand.18 The baits are
in pellet form and are coloured green with the intent of deterring birds from consuming them.19
[16] Brodifacoum operates by affecting the blood clotting of birds and mammals. Target species for pest control can be poisoned through directly consuming brodifacoum baits. Death in rodents usually occurs within 7 to 10 days after ingestion of a lethal dose.
[17] Non-target species including native birds can also be poisoned if they consume brodifacoum baits (“primary poisoning”). Both predatory and scavenging species can also be poisoned after ingesting other species which have died from brodifacoum poisoning (“secondary poisoning”). Different species have different
tolerance to brodifacoum.
16 See annexure J of affidavit of S Harris, 23 June 2017. Applicable regulations under HSNO include: Hazardous Substances (Classes 6, 8 and 9 Controls) Regulations 2001; Hazardous Substances (Identification) Regulations 2001; Hazardous Substances (Packaging) Regulations
2001; Hazardous Substances (Disposal) Regulations 2001.
17 Affidavit of HC Dodd, 10 July 2017, annexure HCD6 at 1.
18 Agreed Statement of Facts, 21 July 2017 at [18].
19 Hazardous Substances (Classes 6, 8 and 9 Controls) Regulations 2001, reg 51.
[18] As the baits decay, the brodifacoum binds strongly to the underlying organic and inorganic matter, including soil and sediments. Brodifacoum has very low solubility, and breaks down over weeks to months, depending on environmental factors, but the parties disagree over whether it would dissolve or be suspended in water, or is capable of leaching into soil.
[19] The agreed effects of the aerial application of brodifacoum at the sanctuary land include:
(a) In addition to the target species, the aerial application of brodifacoum bait will kill some possums, mustelids, hedgehogs, rabbits, hares, deer, and pigs present in the Sanctuary.
(b)The possible incidental poisoning of morepork, hawks, weka and other protected species of wildlife likely to eat brodifacoum bait and/or to eat other birds, rodents and possums that have died from eating the pellets.
(c) The closure of the Sanctuary for at least 120 days, dependent on the breakdown of the brodifacoum pellets.
(d)The need to close a section of the Dun Mountain Railway Walkway for the individual days of the drop of the pellets.
(e) The possibility that some brodifacoum pellets may land directly in the beds of streams or streams that flow within the sanctuary, or may enter streams through overland flow if dropped on land.
[20] The parties disagree about other effects on sustainable management including on amenity values and intrinsic values as described in the RMA.
Quality of evidence
[21] The parties tendered in evidence, particularly in the affidavits of James
Edward Hilton, Alastair Andrew Chalmers Fairweather, Peter John Visser, Katharine
Anne White, Cynthia Anne McConville and Justine Dando McDonald, a substantial amount of scientific and opinion evidence regarding the scientific consensus, data, efficacy, ethics and short, medium and long-term impacts of use of brodifacoum and other VTAs including sodium fluoroacetate (“1080”). I note that “judicial review proceedings are not appropriate for the resolution of disputed questions of fact”.20
While a mistake of fact can amount to an error of law, in New Zealand this is a “very
high hurdle” for applicants and requires (for example) “findings of fact unsupported
by any evidence”.21
[22] The weighting of scientific evidence by which brodifacoum and 1080 have been deemed safe for use in specific circumstances by the Minister, the New Zealand Food Safety Authority and the Department of Conservation is not under direct challenge in this proceeding. (Nor arguably, can questions of scientific weighting be so challenged in a judicial review proceeding). Even if the scientific evidence were under direct challenge, it is not the court’s role to substitute its assessment of the relative weight of competing factual claims, particularly in a “fact-intensive” and
highly scientific, context.22 Thus evidence contesting the data and science behind
brodifacoum and 1080’s approved use in New Zealand and each poison’s contested impact on native populations and water quality is of little assistance in resolving the legal issues that this case raises. Where it has been relevant or of assistance I have noted it below.
[23] Some of the evidence advanced, particularly on behalf of the Group, were statements of opinion, which are generally not admissible in a proceeding, except as provided by ss 24 or 25 of the Evidence Act 2006.23 Section 24 allows witnesses to give an opinion in evidence so far as it is necessary to communicate what the witness saw, heard or otherwise perceived.24 An expert is a person who has specialised knowledge or skill based on training, study or experience.25 Opinions offered by an
expert are admissible if the fact-finder is likely to obtain substantial help from the
20 B v Waitemata District Health Board [2015] NZCA 139 at [20] per Randerson J.
21 Clifford Lamar Ltd v Gyenge [2011] NZCA 298 (CA) at [4]-[5] per Wild J.
22 Maxberry v National Rifle Association [2015] NZHC 3340, [2016] NZAR 127 at [97] per
Mallon J.
23 Evidence Act 2006, s 23.
24 Evidence Act 2006, s 24.
25 Evidence Act 2006, s 4(1).
opinion in understanding other evidence in the proceeding or in ascertaining any fact that is of consequence.26 Where the opinions advanced in the various affidavits did not fall within the provisions of the ss 24 and 25, they were not matters I could place any weight on.
[24] I agree with the Council’s submissions set out at [11] to [14]. Having closely read the evidence, it is clear that a number of the affidavits filed in support of the application to a large part repeat the concerns that individual members have over the perceived and feared impacts of the proposed action. I agree with the decision of the Environment Court in Shirley Primary School v Telecom:27
In our view if a Council or the Court finds that there is an unacceptable risk of adverse physical health effects then it is likely to refuse consent anyway. If the risk is acceptable then the fears of certain members of the community or even of sufficient people to be regarded as a 'community' would be unlikely to persuade the Council or at least the Court that consent should be refused, because the individual's or the community's stance is unreasonable. It is not irrational as we shall explain later, but it is unreasonable. Thus we do not go quite as far as the Telecom case in saying that fear is not an effect to be taken into account. We consider it is, but whether it is an effect which should be given any weight depends on the assessment of the risk.
[25] Here, the risk regarding the use of brodifacoum has been assessed many times by a variety of different departments, agencies, council planners and scientists as acceptably low, when used with appropriate constraints. I have not been persuaded by my review of the affidavit evidence that this risk assessment is so wrong as to be untenable.
History of Regulations
[26] The history of the Regulations is as follows:
(a) In 2011 the Parliamentary Commissioner for the Environment (“the PCE”) Dr Wright investigated and reported on the use and regulation of 1080 and other vertebrate toxic agents (“VTAs”) in New Zealand,
including brodifacoum.
26 Evidence Act 2006, s 25.
27 Shirley Primary School v Telecom Mobile Communications Ltd [1998] NZEnvC 394, [1999] NZRMA 66 (EnvC) at [190].
(b)The PCE concluded the legislation governing the use of VTAs was creating unnecessary complication and confusion. An investigation into streamlining the regulation and use of VTAs was recommended.
(c) The Department of Conservation, Ministry of Primary Industries and
TBFree NZ investigated and presented their findings in a report in
2015 entitled Business Case: Simplifying the regulations of aerial
1080 under the Resource Management Act (2015).28 The Business Case found that the risks and effects of 1080 were effectively managed under a combination of HSNO, ACVMA and by the Ministry of Health. The Business case considered various different ways to effect the regulatory consolidation and recommended a regulation be made under s 360(1)(h) of the RMA in relation to 1080.
(d)The Minister, upon receiving this recommendation, directed the Ministry of the Environment to consider whether any other VTAs were subject to the same regulatory duplication as 1080. Brodifacoum was assessed as falling into this category.
(e) A consultation was held with other government departments and the public as to the proposed regulations between April and May 2016. The Group made submissions against the proposed regulations during this process.
(f) The Cabinet agreed to draft the recommended regulations in August
2016. 29
(g)In December 2016 the Ministry sought feedback from selected stakeholders on the potential implementation or wording issues in the
draft regulations. These stakeholders were mainly councils, as well as
28 Affidavit of NR Smith, 10 July 2017, annexure NRS-6.
29 Affidavit of NR Smith, 10 July 2017, at [14].
the New Zealand Fish and Game Council, OSPRI and Predator Free
New Zealand.30
(h)In February 2017 Cabinet approved the Regulations for submission to the Executive Council. The Regulations came into force on 1 April
2017.
(i)The Regulations were amended with effect from 2 June 2017. The relevant part of the Regulations reads:
(i) The discharge of brodifacoum is exempt from section 15 of the
[RMA] if—
(a) the discharge is for the purpose of killing vertebrate pests;
and
(b) the discharge is into or onto any of the following land, or into any water or air above, on, or in that land:
(ii) land protected by predator-proof fencing:
(iii) an island of New Zealand other than the North
Island or South Island; and
(c) the operator complies with the conditions in Schedule
2.
[27] Schedule 2 of the Regulations sets out conditions relating to what notice of the proposed discharge must be given.
30 Affidavit of NR Smith, 10 July 2017, at [15].
The plaintiff ’s position
[28] The Group has applied in its submissions for the court to make the following declarations. I note that these are more concise and directed than those set out in its Statement of Claim. The Group’s declarations as sought read:
(a) The Resource Management Exemption Regulations 2017 are unlawful due to:
(i) Their repugnancy to the Resource Management Act; (ii) The promulgation for an improper purpose;
(iii) The failure of the Minister to have regard to all mandatory relevant considerations before promulgating the Regulations; and/or
(iv) The Minister acting under mistake of fact.
(b) The exemptions under the Resource Management Exemption Regulations 2017 (so far as they are lawful) apply only to Section 15 of the RMA and do not impact other duties and obligations imposed under Part 3 of the RMA.
(c) Section 13(1)(d) of the RMA prohibits the aerial broadcast of brodifacoum and other poison baits in, on or under riverbeds in circumstances where there is no buffer zones and/or where a riverbed is part of an application area.
(d) Rule FWr.9.3 of the Nelson Resource Management Plan prohibits the aerial broadcast of brodifacoum toxic baits (and other toxic baits) in circumstances where there are no buffer zones and/or where the river bed is part of the application area, including the proposed broadcast of brodifacoum to the sanctuary land in the circumstances proposed by the first respondent.
(e) To the extent the Resource Management Exemption Regulations
2017 may be lawful:
(i) The requirement for a predator-free fence under Regulation
5(b)(i) applies only to fences that are designed and constructed to be continuously predator free.
(ii) The use of brodifacoum and 1080 are exempt from s 15 of the RMA only in the formulations and applications approved by the EPA, and when used strictly in compliance with all applicable safety data sheets and approved labelling, and all applicable codes of conduct.
[29] As I understand the Group’s submissions, the declarations sought can be summed up as:
(a) A declaration the Regulations are unlawful due to: (i) their repugnancy to the RMA;
(ii) the promulgation for an improper purpose;
(iii)the failure of the Minister to have regard to all mandatory relevant considerations before promulgation; and/or
(iv) the Minister acting under mistake of fact and law.
(b)A declaration that the exemptions under the Regulations (so far as they are lawful) apply only to s 15 of the RMA and do not impact other duties and obligations imposed under Part 3 of the RMA.
(c) A declaration that s 13(1)(d) prohibits the aerial broadcast of brodifacoum and other poison baits in, on or under riverbeds in circumstances where there are no buffer zones and/or where a riverbed is part of an application area.
(d)A declaration that Rule FWr.9.3 of the Nelson Resource Management Plan prohibits the aerial broadcast of brodifacoum and other toxic baits in circumstances where there are no buffer zones and/or where the river bed is part of the application area, including prohibiting the proposed broadcast of brodifacoum on the sanctuary land and waterways as proposed by the Trust.
(e) A declaration that, to the extent the regulations may be lawful:
(i)The requirement for a predator-free fence under reg 5(b)(i) is not satisfied as a matter of fact.
(ii)The use of brodifacoum and 1080 are exempt from s 15 of the RMA only in the formulations and applications approved by the EPA, and when used strictly in compliance with all
applicable regulations, codes of conduct, safety data sheets and approved labelling in New Zealand.
[30] The grounds the Group advances in support of these orders are:
(a) The structure and purpose of the RMA is designed to achieve “sustainable management” of natural and physical resources. The meaning of sustainable management extends beyond natural ecosystems to broader amenity values and aesthetic and cultural conditions. The Group argues that the considerations of the affected community and wider public interest need to be incorporated into decisions for “sustainable management” to occur. The absence of these considerations from the Regulations makes them repugnant to the RMA.
(b) Section 13 and section 15 of the RMA create overlapping duties.31
The scope of the Regulations is limited to exemptions for discharges under section 15. Section 13 operates to preclude the aerial discharge or deposit of Brodifacoum unless it is expressly permitted in the NRMP. The NRMP Rule FWr.9 prohibits the deposit of “any … toxic
… material” in or on a river bed.
(c) The Regulations as promulgated are repugnant to the purpose and scheme of the RMA as:
(i)they allow discharges of certain contaminants as of right, without public consultation and without requiring “best practice analysis” or consultation with landowners. This is an excessively wide use of power and thus unlawful;
(ii)they were promulgated for an improper purpose (accelerating the Predator Free 2050 policy to the exclusion of mandatory
RMA considerations);
31 Woolley v the Queen [2014] NZCA 178 at [21].
(iii)they breach fundamental constitutional principles laid down in the Bill of Rights and Magna Carta regarding freedom of landowners; and
(iv) the Minister acted under several mistakes of fact and/or law.
These include that:
i. Delegated legislation cannot override statute;
ii. The minister is misinformed as to the low level of harm on native birds of Brodifacoum both directly and indirectly; and
iii. As a matter of law, the 2006 Code upon which the Minister relied in making his decision to promulgate the Regulations is expired and not good law.32
The respondent’s position
[31] The respondents’ positions are:
(a) As a matter of fact, the sanctuary fence qualifies as “predator-proof”;
(b)A comprehensive regulatory framework controls the use of brodifacoum outside of the RMA and that this framework has been complied with (notwithstanding the fact the 2006 Code is not an approved operating plan);
(c) The Regulations promulgated fall within the terms of the empowering provision of the RMA and are not repugnant to the RMA or constitutional norms;
(d)Sections 13 of the RMA does not apply to the aerial drop of brodifacoum as it and section 15 are designed to cover different types
32 As set out in the Group’s further submissions, 31 July 2017 at [22].
of interference with land; physical uses of land as opposed to discharge of contaminants in air, land or water. The discharge of contaminants cannot be interpreted as the ‘deposit of a substance’, based on a key decision of the Environment Court33, but also on a contextual approach to the words in the statute. An absurdity would arise if section 13 had the broad application the Group argues for: the
first respondent would never be able to obtain consent for the brodifacoum drop, even before the Regulations were put in place.
(e) The Group’s reading of Rule FWr.9 of the NRMP is incorrect and inconsistent with the purposes of the NRMP and leads to absurd outcomes.
The interveners’ position
[32] Forest and Bird as the first intervener agrees with the respondent’s
submissions and adds that:
(a) The Regulations are not inconsistent with the purpose of the RMA, including the purpose of sustainable management; and
(b)The right of public participation under the RMA is carefully constrained by Parliament, and that the removal of it in this circumstance is intentional and valid.
[33] Te Whare as the second intervener agrees with the submissions of the Group.
Standing
[34] The issue of standing was raised late in the hearing by the Trust who challenge whether the Group has standing under the Declaratory Judgments Act
1908. Under s 3 of the Declaratory Judgments Act 1908 “any person” who “claims to
be in any other manner interested in the construction or validity” of a statue or
33 Contact Energy Ltd (Re an application) [2009] NZRMA 97 (EnvC).
regulation may apply to the High Court for a declaratory order.34 The wording of s 3 has been held to “indicate an intention to confer a very broad right to seek the Court’s assistance on construction”.35 Palmer J has held the requirement of standing “has been significantly relaxed in New Zealand. But it is not so relaxed that it is horizontal. … standing is not automatic and decisions are made on the totality of facts, with a generous approach prevailing”36 Here, the Group claims to be interested in the construction of the Regulations due to the immediate and direct impacts the proposed aerial drop under the Regulations will have on its members’ amenity interests, as well as representing a broader public interest in the regulated use of brodifacoum in eradication procedures. The purposes of the applicant in its Rules include ensuring “the safety and security of [its members’] amenities and infrastructure (including access ways, parks, parking, drainage, streetscape, walking, cycling etc)”.37 The factual context here means that this is a marginal case.38
However, given that standing does not appear to have initially been challenged I am
not going to deny the Group standing. I consider that given the timing and other considerations the case should stand or fall on its substantive merits, thus hold that the impact on the Group’s members’ interest in preserving their local amenities is just adequate to give the Group standing.
Is the fence predator-proof?
[35] The preliminary inquiry in this proceeding is one of fact: does the fence surrounding the sanctuary qualify as a “predator-proof fence” under the Regulations. If the fence does not qualify under the Regulations, the Trust cannot rely on the exemption the Regulations provide and will need to seek resource consent under s 15
to perform the aerial drop.
34 Declaratory Judgments Act 1908, s 3.
35 Royal Forest and Bird Protection Society of NZ Inc v Minister of Conservation [2006] NZAR
265 at [4].
36 Smith v the Attorney-General (on behalf of the Department of Corrections) [2017] NZHC 1647 at [18] and [27].
37 As set out in the submissions for the Trust, 25 July 2017 at [41.1].
38 Moxon v The Casino Control Authority HC Hamilton M324/99, 24 May 2000 at [99]: “The fact standing is ultimately procedural rather than substantive also suggests that in marginal cases standing should be favoured”.
The law
[36] “Predator-proof fence” is not defined in reg 5(a)(i) of the Regulations or anywhere in the RMA. However, the 2006 Code sets out the standard applicable before aerial drops of brodifacoum can be undertaken. There must be an “effective pest proof fence”,39 defined as “a fence design that has a proven ability to effectively exclude all target mammalian pests and farm livestock in and adjoining the Specified Area.”40 This has not been changed under operating Code 63.41 Further requirements under the Code include that the fence must:
(a) Be of a design and construction which has been tested and proven to be fully effective in preventing access by target pests and livestock;
(b)Be able to be maintained in a pest proof state, including having a fence maintenance plan that provides the resources and mechanism by which the fence will be maintained in a full effective condition;
(c) Be verified as fully effective to mammalian pests and livestock within
4 weeks of bait application by a consultant experienced in pest proof fence design;
(d)Have secured all permanently flowing steams and ephemeral channels entering or existing the area from pest invasion with proven pest exclusion structures;
(i)These structures must also serve to screen out any whole baits that may land in the water column during bait application.42
[37] The Operating Plan 63 adds the requirements:
39 Code of Practice: Aerial and Hand Broadcast Application of Pestoff® Rodent Bait 20R for the
Intended Eradication of Rodents from Specified Areas of New Zealand at 3.2.
40 At 3.2.
41 Operating Plan 63: Aerial and Hand Broadcast Application of Pestoff® Rodent Bait 20R (V9014) for the Intended Eradication of Rodents from Specified Areas of New Zealand at 2.6 and
3.1.
42 2006 Code above n 39, at 1.10.
(a) Fences must be located and constructed to minimise the risk of damage to them, and to a standard which gives reasonable expectation that they can be maintained fit for purpose; and
(b)Culverts and other structures over flowing streams and ephemeral channels must be constructed to a standard which gives reasonable expectation that they can be maintained fit for purpose.43
[38] Breach of the 2006 Code or its replacement is an offence under s 55(1)(c) of the ACVMA with penalties for individuals including a term of imprisonment not exceeding 2 years or a fine not exceeding $30,000 and a fine not exceeding $150,000 for corporations.44 I will deal with the issue of the alleged expiry of the 2006 Code below at [110].
[39] While this was not articulated well in submissions, the approach that I understand the Group is suggesting should be applied is that the decision-maker made a mistake of law manifested as a fact-finding error. For this to be a sustainable ground of review, the mistake of fact must be made by a reviewable decision maker. Here the decision that the fence is predator proof has been made by the Trust and approved by the Council.45 Both are theoretically reviewable, even though the Group’s submissions did not address the basis for their reviewability, and I will proceed on that basis.
[40] As stated in [21] above, “findings of fact unsupported by any evidence … could give rise to a question of law”.46 The standard set by the Supreme Court for this ground of review is high: an “error of law is reached whenever a body entrusted with a determination of fact has reached a conclusion that is clearly wrong or is
unreasonable”.47
43 Operating Plan 63 above n 41, at 2.6.3 and 2.6.4.
44 ACVMA, above n 12, s 56(1).
45 Affidavit of HC Dodd, 10 July 2017, annexure HCD7 at 2.
46 Clifford Lamar Ltd v Gyenge[2011] NZCA 208 (CA) at [4]–[5].
47 Vodafone New Zealand Ltd v Telecom New Zealand Limited [2011] NZSC 138, [2012] 3 NZLR
153 at [16].
The evidence
[41] On behalf of the Group the following individuals presented evidence regarding the penetrability of the pest-proof fence:
(a) James Edwin Hilton, who said he was an expert in “wildlife management”, attached photographs of “5 significant” slips around the fence he witnessed on 18 December 2016.48 He asserted that “early expert advice [which] recommended against building the fence”.49 This advice is not attached in his evidence and is inadmissible as hearsay. Mr Hilton is not an expert in fence construction as far as I can ascertain from his incomplete curriculum vitae, so I treat his commentary (beyond the facts as he presented them of 18 December 2016) as opinion only.
(b)In Mr Hilton’s second affidavit he argued that the practice of volunteers leaving the culverts open during periods of anticipated rainfall is sufficient to allow pests re-entry.50 He also commented on the placement of the fence relative to the adjacent Dun Mountain historic Railway Walkway as not in accordance with practice in “other fenced sanctuaries”. No evidence was given to support this. In his
opinion “it is impossible to avoid ongoing breaches of the … fence integrity during moderate to heavy rainfall”.51 As he is not an expert in this field, I attach little weight to these opinions.
(c) Timothy David Mitchell, handyman, claimed to have personally observed slips that mean the fence is not-predator free. He also claimed that the nature of the steep terrain was such that the solutions designed “defeat the whole integrity of the fence”.52 Mr Mitchell is also not an expert in the area of the construction of predator-proof
fences, and adduced no evidence as to what slips he has observed and
48 Affidavit of JE Hilton, 26 June 2017, at [12] and annexure B.
49 At [10].
50 Affidavit in reply of JE Hilton, 17 July 2017, at [20e].
51 At [21].
52 Affidavit of TD Mitchell, 23 June 2017, at [19].
where. I find his evidence of little value. His second affidavit of
24 July 2017 adduced evidence of a slip by the fence on 22 July following mild rainfall.53 His attached comments about the likelihood of further slips are opinion only and of limited value.
(d)Susan Harris, retired historian, claimed the opening of predator gates during storms allowed the entry and exit of predators.54 Ms Harris is not an expert in pest-proof fencing, thus this is opinion only and of little value. She attached photographs of alleged breaches of the fence in annexure G, without detailing who took the photos and when. I find this of little assistance.
(e) Dai Mitchell, chef, annexed photos of slips he witnessed and purported breaches of the fence as at 28 May 2017.55 This included “13 pest mesh screens on the swales and drains being fully open”.56
He added that in his opinion “current pest management seemed to be effective, as birdlife is abundant”.57 The opinions he expressed has no obvious connection to any area in which he could claim to be qualified to give opinion evidence.
[42] For the respondents, the following evidence regarding the penetrability of the fence was adduced:
(a) Hudson Callahan Dodd, General Manager of the Trust, gave evidence as to the security measures of the fence. These include that the fence “includes electronic monitoring system” for its entire length which “detects any breach and security switches on gates which detect when
they are left open”.58 He also gave evidence of the Trust’s Biosecurity
Plan, modelled on best practice by other fenced sanctuaries annexed as HCD3. His evidence regarding inspection and maintenance
53 At [4].
54 Affidavit of S Harris, 23 June 2017, at [20].
55 Affidavit of D Mitchell, 26 June 2017, at annexure A.
56 At [4].
57 At [7].
58 Affidavit of HC Dodd, 10 July 2017, at [10].
procedures was persuasive and demonstrated a clear understanding of the ongoing security challenges facing the sanctuary.59
(b)Mr Dodd also offered evidence regarding the historical slips which threatened the integrity of the fence. During construction three slips in two areas of the fence occurred and the affected sections of the fence were repaired and replaced.60 His evidence confirmed no further slope movement has been detected at either of these sites since February and June 2016 respectively.61 Mr Dodd’s evidence was that none of the three post-completion slips (November 2016, April 2017 and May 2017) breached the integrity of the fence.62 Mr Dodd confirmed the evidence of Mr Hilton and Mr Dai Mitchell that on the two dates alleged by them (18 December and 28 May 2017) the mesh screens on the culverts had been intentionally left open, to avoid build up, and that this was acceptable because the sanctuary was not yet operating as a bio-secure site.63
(c) William Bruce Shaw, managing director of Xcluder Pest Proof Fencing Limited gave evidence regarding the initial tender, design and scope of the sanctuary fence.64 His evidence was that Xcluder designs have been used in the successful pest-proof sanctuaries in New Zealand including Maungatautari, Shakespeare Regional Park, Tawaharanui, Rotopiko, Riccarton Bush and Bushy Park.65 He adduced evidence that the “only known incidents of pest incursion after construction were due to factors external to the fence design and
construction, such as gates being left open, damage to the fence by
59 At [16] – [42].
60 At [45] – [47].
61 At [47].
62 At [48].
63 At [52].
64 Affidavit of WB Shaw, 10 July 2017, at [8]–[12].
65 At [6].
erosion or flooding, heavy snow fall or tree fall.”66 Details of the sanctuary fence include:
(i) A partly buried mesh skirt at the base of the fence; (ii) 6mm x 25mm aperture mesh panels;
(iii) A rolled hood;
(iv) Small culverts have steel mesh removable panels;
(v)Large culverts are electronically monitored with square concrete swing screen (to allow debris build-up to be released); and
(vi)Electronic monitoring system on fence which detects and reports real time breaches by text.67
(d)Mr Shaw gave evidence that aside from design, the two essential requirements to maintain a pest free environment were ongoing inspection and monitoring and the ability to respond swiftly to breaches. He acknowledged that the culverts and waterways require special monitoring and maintenance, particularly during severe weather events to ensure they were not sites of breaches.68
(e) John Harley Simmons, General Manager at Maungatautari Ecological Island Trust offered evidence regarding the largest scale pest-proof fenced sanctuary in New Zealand. His evidence included that the Maungatautari fence was designed and constructed by Xcluder and is, in his opinion, similar to the sanctuary fence. Both sanctuaries have similar geological challenges with steep terrain, with Maungatautari
having more points of vulnerability with 100 water flows in and out of
66 Affidavit of WB Shaw, 10 July 2017, at [26]–[30].
67 At [26]–[30].
68 At [37].
the fenced area. His evidence was that Maungatautari had had in its history 21 breaches, which were all contained and were mostly attributable to water gate blockages or culvert leakages. Only one breach during 10 years has been via the fence itself. Maungatautari is free of all mammalian pests except mice.
(f) John Wesley Higginbotham, principal civil engineer of Nelson Consulting Engineers Limited gave evidence as an expert in geotechnical engineering.69 Mr Higginbotham’s company consulted with the Trust at various stages during the construction of the sanctuary fence, including consultation on a particular landslip prone slope about 500m east of Cater Creek which occurred in March 2015 and again in February 2016.70 His expert opinion was that post construction, steeper terrain has a “settling in period which extends through the first significant wet season”.71 His opinion is that “slippage of land is normally a stabilising event”.72 His opinion of the three slips which have occurred post-constructions is that the volume
“20 to 150 cubic metres … I would class as generally shallow and … relatively minor”. There is no evidence that Mr Higginbotham saw and assessed these slips in person.
(g)Adam Groenewegen, lead ranger at Zealandia (a sanctuary located in Wellington), manages an area enclosed by a Xcluder pest-proof fence. He was therefore in a position to make observations on his practical experience with a fence such as that constructed for the sanctuary. He performed an independent fence inspection at the sanctuary on 1 June
2017 in which he confirmed his view that the fence was pest-proof.73
His evidence set out that a pest-proof fence design has four key aspects:
69 Affidavit of JW Higginbotham, 10 July 2017, at [3].
70 At [4].
71 At [5].
72 At [5].
73 Affidavit of A Groenewegen, 10 July 2017, at [17].
(i) Height (must be two metres or more to prevent jumping over); (ii) Curved top (to prevent climbing);
(iii) Fine mesh (to prevent rodents climbing through);
(iv) Skirt (buried underground 100mm and extending out 300-
400mm to prevent pest species digging under); and
(v) Constant monitoring required.74
(h)Mr Groenewegen recommended maintaining security of the fence through: twice weekly volunteer checks, fortnightly visual inspection and repairs, a yearly audit, and checking the security of the fence after any out of the ordinary weather event. He gave evidence regarding inspecting the sanctuary fence on 1 June 2017 where he concluded in his report that the fence was an effective barrier at that time, but
recommended diligent ongoing maintenance, a 2nd level of failsafe
barriers and extra rivets on the curved top hat to increase impenetrability.75
Analysis
[43] Mistake of fact amounting to an error of law requires a decision “so clearly untenable”76 as a matter of fact, that an error of law occurs. In light of the evidence offered by the respondents I am persuaded both that the fence qualifies as an “effective pest-proof fence” and that this decision was open on the facts to both the Trust and the Council to make. The fence was built with the latest possible technology by an experienced industry leader. The process of design and construction combined with the ongoing maintenance as set out in the Brook Waimarama Sanctuary Biosecurity Plan 2017 is such that I am persuaded the fence is
“pest-proof”. The evidence offered in support of the Group is that minor slips have
74 Affidavit of A Groenewegen, 10 July 2017, at [10].
75 At [18].
76 Bryson v Three Foot Six Ltd [2005] NZSC 34, [2005] 1 NZLR 721 at [26].
been witnessed, the latest occurring on 22 July 2017. Members of the Group have also witnessed culvert swales and grates being left open. The photos offered by Mr Hilton and Mr Dai Mitchell were helpful to my understanding. These slips, while showing breaches and potential breaches, are fixed at a point in time and have had time to be remedied. Mr Dodd has explained that the open culverts were an
intentional choice by the Trust.77
[44] The practice of leaving culverts open, as witnessed by Mr Mitchell will not be practice once the aerial drop occurs. The rest of the Group’s concerns are not supported by expert opinion. However, the concerns regarding the risk of landslips, tree fall or severe weather events are founded and acknowledged, as are the concerns about the particular weaknesses of the culverts and waterway troughs compared to
the fence as a whole.78 The Trust has presented credible evidence as to how it plans
to mitigate and address each of these ongoing challenges to impenetrability. Overall I am persuaded that the decision made by the Trust and the Council as to the impenetrability of the fence was open to them and does not qualify as a mistake of fact.
Does s 13 of the RMA apply?
[45] The Group submits that the aerial drop of brodifacoum is both a ‘discharge of a contaminant’ under s 15 of the RMA and a ‘deposit of a substance’ under s 13 requiring an additional (and un-obtained) resource consent. The Regulations only exempt operators from complying with s 15 of the Act.
The law
[46] Section 13 of the RMA states:
(a) No person may, in relation to the bed of any lake or river,—
(i) use, erect, reconstruct, place, alter, extend, remove, or demolish any structure or part of any structure in, on, under, or over the bed; or
(ii) excavate, drill, tunnel, or otherwise disturb the bed; or
77 Affidavit of HC Dodd, 10 July 2017, at [52].
78 At [43]–[55].
(iii) introduce or plant any plant or any part of any plant (whether exotic or indigenous) in, on, or under the bed; or
(iv) deposit any substance in, on, or under the bed; or
(v) reclaim or drain the bed—
unless expressly allowed by a national environmental standard, a rule in a regional plan as well as a rule in a proposed regional plan for the same region (if there is one), or a resource consent.
[47] Section 15 of the RMA provides:
(a) No person may discharge any—
(i) contaminant or water into water; or
(ii) contaminant onto or into land in circumstances which may result in that contaminant (or any other contaminant emanating as a result of natural processes from that contaminant) entering water; or
(iii) contaminant from any industrial or trade premises into air; or
(iv) contaminant from any industrial or trade premises onto or into land—
unless the discharge is expressly allowed by a national environmental standard or other regulations, a rule in a regional plan as well as a rule in a proposed regional plan for the same region (if there is one), or a resource consent. (emphasis added)
[48] ‘Contaminant’ is defined in the RMA as including:
(a) “any substance (including gases, odorous compounds, liquids, solids, and micro-organisms) or energy (excluding noise) or heat, that either by itself or in combination with the same, similar, or other substances, energy, or heat—
(i) when discharged into water, changes or is likely to change the physical, chemical, or biological condition of water; or
(ii) when discharged onto or into land or into air, changes or is likely to change the physical, chemical, or biological condition of the land or air onto or into which it is discharged”.79
79 Resource Management Act, s 2(1).
[49] ‘Discharge’ is defined in the RMA as including “emit, deposit, and allow to escape”.80 I note that ‘deposit’ is a subset of ‘discharge’ under the RMA. ‘Deposit’ and ‘substance’ are undefined. The definition of ‘contaminants’ includes substances, but only those likely to effect a “physical, chemical or biological” change in its surroundings.
[50] The key authority on the interpretation of ‘deposit’ under s 13 of the RMA is the decision of the Environmental Court in Contact Energy Ltd (re an application).81
The case involved Contact Energy Limited (“Contact”) seeking declarations from the Court as to whether it was required to seek additional consents for the effect of its activity (the deposit of sediments downstream) under s 13 of the RMA, in addition to those it had obtained for the action of damming water for its Clyde and Roxburgh
power stations.82 Judge Jackson, after exploring the literal and contextual meaning
of ‘deposit’, concluded at [44] that there was no overlap between the sections
requiring dual consents:
Since sections 13 and 15 are both in Part 3 of the Act and are obviously designed to complement each other and the other sections in that Part defining duties and restrictions, the initial references must be first that
‘deposit’ is usually a subset of ‘discharges’, and excludes more general discharges and passive lack of interference such as ‘allowing to escape’; and
secondly that ‘substances’ are not contaminants.
[51] Further at [47] he concluded:
… having regard to the scheme of the Act:
(a) ‘deposit any substance’ is different from ‘discharge any contaminant’;
(b) ‘deposit’ is a limited subset of ‘discharge’;
(c) ‘substance’ does not include ‘contaminant’ so that substances must be benign and usually natural; and
(d) ‘deposit’ involves action by the depositor because passive non- interference with effects can be addressed by imposing conditions on the active cause (such as dam construction).
80 At s 2(1).
81 Contact Energy Ltd (re an application) [2009] NZRMA 97 (EnvC).
82 At [6].
[52] The Group also referred me to Woolley v the Queen.83 It submitted that this decision of the Court of Appeal allows duties imposed under different sections in Part 3 of the RMA to apply simultaneously.
[53] This case involved an appeal by Mr Woolley against two convictions under ss 9 and 13 of the RMA. He claimed he could not be simultaneously charged under both for the same activity (driving a digger into a wetland to enlarge an existing drainage channel, and incidentally crushing vegetation).84 Key to the Court of Appeal’s decision was the overlapping jurisdictions of the regional and district council for administration of s 13 and s 9(3) of the RMA respectively. The court held that “it follows the scheme of the Act that if an activity engages functions assigned to territorial and regional authorities, both ss 9 and 13 can apply”.85 The court went on to conclude that “charges under both sections are possible in situations where there is an overlap of functions [of authorities]”.86 This decision concerned strict liability charges under ss 9 and 13, and did not touch on the issue of which section ought to have been used to obtain a resource consent for the digger activity.
[54] This issue regarding s 13 of the RMA is one of statutory interpretation. The starting point for interpreting provisions is to consider what each says in its text and in light of its purpose.87 As stated by the Supreme Court in Commerce Commission v Fonterra Co-operative Group Ltd:88
Even if the meaning of the text may appear plain in isolation of purpose, that meaning should always be cross-checked against purpose in order to observe the dual requirements of s 5. 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.
Submissions
[55] The Group submits:
83 Woolley v the Queen [2014] NZCA 178.
84 Woolley, above n 83 at [1].
85 At [34].
86 At [39].
87 Interpretation Act 1999, s 5(1).
88 Commerce Commission v Fonterra Co-operative Group Limited [2007] NZSC 36, [2007] 3
NZLR 767 at [22].
(a) The Court of Appeal has held duties under Part 3 of the Act can overlap and co-exist in Woolley. This overrides the authority of the Environment Court decision in Contact Energy as to the meaning of
‘deposit’.
(b)The Trust is required to obtain a resource consent under s 13(1)(d) of the RMA for the deposit of brodifacoum in river beds.
(c) In addition, under the NRMP no resource consent can be granted as the deposit of toxic materials in a riverbed is a ‘prohibited activity’.89
Meaning of ‘use’ and relationship to ‘deposit’
[56] The purpose of the RMA is to promote sustainable use and development of natural resources while avoiding, remedying and mitigating any adverse effects that might follow from that use. The purpose is not to prohibit all harmful or potentially harmful activities. As observed in Contact Energy, the RMA contemplates a distinction between activities and their effects.90 Part 3 of the RMA sets out restrictions on activities based on their geographic area and the effects they will have. These include:
(a) Restrictions on use of land (s 9 RMA);
(b) Restrictions on use of coastal marine area (s 12 RMA);
(c) Restrictions on certain uses of beds of lakes and rivers (s 13 RMA); (d) Restrictions relating to water (s 14 RMA); and
(e) Discharge of contaminants into the environment (s 15 RMA).
[57] The first four listed above focus on ‘use’ or activities in relation to resources. The language used in s 13(1) is structured the same way as the definition of ‘use’ in
89 As set out in the submissions for the Group, 18 July 2017, at [105].
90 Contact Energy, above n 81 at [22].
s 2(1). This is important context for the meaning of s 13(1)(d). Every activity, action or use listed in the other parts of s 13(1) have connotations of direct and intentional physical activity in relation to the riverbed:
(a) use, erect, reconstruct, place, alter, extend, remove or demolish any structure, s 13(1)(a);
(b) Excavate, drill, tunnel, or otherwise disturb the bed, s 13(1)(b); (c) Introduce or plant any plant (or any part), s 13(1)(c); and
(d) Reclaim or drain the bed, s 13(1)(e).
[58] The respondents submit that the word ‘deposit’ should be read in light of this action-based context to connate ‘direct’ and ‘physical’ usage. I agree with this submission, and the interpretation adopted by the Environment Court in the Contact Energy decision.
Meaning of ‘discharge of contaminant’
[59] In contrast to these physical activities which are regulated by s 13, the focus of s 15 is on the effect of a wide range of activities. As the Court observed in Contact Energy, the definition of discharge is defined broadly to refer to activities in relation to all three physical states: ‘emits’ is “appropriate language for gases”91,
‘discharge’ is usually used for liquids and ‘deposit’ traditionally refers to solids.92
The Court also observed that discharge has a passive element to it: “allowing to escape”. Section 15 regulates all activities, including the physical act of deposit, based on the effect of the substance – a contaminating agent – on its surroundings, not on the location where they occur.
[60] I agree with the analysis in the first respondent’s submission that:
the definition of contaminant includes “any substance”, but only if it changes or is likely to change the physical, chemical or biological condition of the land or water that it is discharged on or to. It is this contaminating effect which is the key difference between substances and contaminants.
91 Contact, above n 81 at [35].
92 At [35].
Substances are benign and usually natural. … By contrast, contaminants must be able to change or likely to change the condition of land or water.93
[61] Substance is a broad term that describes something benign that will have a physical effect on the landscape or topography of beds of rivers or lakes when used (this fits with the section’s focus on physical actions). On the other hand
‘contaminant’ describes a type of substance with a chemical, biological or physical effect on the condition of the bed or other location. This is not the same as affecting the physical shape or topography of land or a bed.
Interpretation tools
[62] The meanings, as I have proposed them, need to be cross-checked against the purpose of the section and the RMA.94 The submissions of the Minister and Council were of particular assistance on this point. The purpose of the RMA is to permit use, actions and development in relation to resources, so long as the resources are protected and the adverse effects are avoided, remedied or mitigated. Requiring duplicate consents for a single action and its effect does not achieve this purpose.
[63] In light of this legislative context, I disagree with the Group submission that
Judge Jackson’s comments in interpreting ‘deposit of a substance’ as excluding
‘contaminants’ are an unnecessary or unorthodox approach.95 I also disagree with the Group’s submission that interpreting a substance as something benign and not including a contaminant will result in less protection of riverbeds. Section 15 operates to cover all discharges of toxic and other contaminants into land, air and water, including places where land and water meet, or where the land discharge may result in the contaminant entering water.96
[64] I disagree with the Group’s proposed interpretation of the decision in Woolley. The interpretation proposed fails to take into account that the decision was concerned with allowing overlap of charges under sections 9 and 13, as they related
to the overlap of jurisdictions of regional and district councils. Here there is no
93 Submissions for the Trust, 26 July 2017, at [123].
94 Commerce Commission v Fonterra, above n 88 at [22].
95 Submissions for the Group, 18 July 2017, at [66].
96 RMA, above n 79, s 13(1)(b).
jurisdictional overlap. Nelson City Council is responsible for the administration of both s13 and 15 in its role as a regional council.97 The proposed interpretation would require the same Council decision-making body to exercise the same function twice under both s 13 and 15.
[65] The purposive approach supports the distinction drawn by the respondents between ss 13 and 15. I agree with Judge Jackson in Contact Energy that the provisions are designed to complement each other, rather than create duplicate and parallel processes. Parliament chose to use different words to describe actions taken in regard to river and lake beds, and the effects occurring in relation to contaminants.
[66] I also agree with the Trust that it is significant that in at least four other instances of resource consent for the discharge of the contaminant brodifacoum no mention of s 13 is made or considered.98 This apparent lack of acceptance that s 13 and s 15 overlap is further supported by the wording of s 360(1)(h) carving out clear powers for the Governor-General to make exemptions from s 15 but no comparable exemptions under s 13. If Parliament intended s 13(1)(d) to apply to the discharge of
contaminant, the regulation making power of s 360(1)(h) is nugatory. I find it more persuasive that Parliament purposefully chose different wording to demonstrate that it did not intend for the meaning of ‘deposit of a substance’ and ‘discharge of a contaminant’ in each section to overlap.
[67] I am persuaded that the wording of s 13 was not intended by Parliament as a secondary hurdle to resource consents granted under s 15, duplicating the process for a single activity.
[68] I will set out in brief the second part of the Group’s submissions regarding the impact of the NRMP for completeness. These submissions duplicate in many ways the interpretation submissions put forward by the Group as to ‘deposit of a substance’ under s 13 of the RMA. They require the discharge of a contaminant to
equate to the deposit of the substance. In relation to this issue I have relied on the
97 At s 30.
98 Submissions for the Trust, 26 July 2017, at [141]–[145].
evidence of Ms Lancashire in order to understand the structure and scope of the
NRMP.
[69] The Group submits in relation to the NRMP:
(a) “Deposition of any … toxic … material” in the beds or on the banks of any river or lake is a “prohibited activity”.99
(b) The sanctuary contains river, including river beds and banks.
(c) ‘Deposit’ should be interpreted as direct and indirect placement by hand, truck or helicopter. This liberal interpretation best serves the purpose of NRMP to protect waterways.100
(d) Brodifacoum baits are a ‘hazardous substance’ and a therefore a
‘substance’ for the purposes of the Rules.
(e) Deposition of brodifacoum baits in the beds or banks of any river in the sanctuary is a prohibited activity due to their toxicity.
[70] The Council is a unitary authority therefore the NRMP is a combined regional and district plan. The Council explained in its submissions:101
The NRMP sits beneath, and is interpreted in conjunction with, its parent legislation. The overall scheme of the RMA can be seen to be reflected in the NRMP and the contextual and purposive clues set out by the [Minister’s submissions] in relation to s 13 are of direct relevance to the proper interpretation of the NRMP in so far as it applies to FWr.9. Conventional statutory interpretation approaches apply. As with the RMA, the NRMP must be read as a whole. Rules within the NRMP have the legal status of regulations.
[71] The Council noted in submissions that none of the planning assessors considered s 13 or FWr.9 relevant to the proposed discharge at any stage in
consultation.102 Ms Lancashire gave evidence as to what she considered a
99 NRMP, r FW9.3.
100 Submissions for the Group, 18 July 2017, at [93].
101 Submissions for the Council, 25 July 2017, at [29].
102 At [23].
“prohibited activity” under Rule FWr.9 would be placement of toxic retaining
materials (tyres, ‘mudcrete’, concrete or bricks) in the river for stabilisation.103
[72] Contrary to the Group’s assertions that ‘deposit of material’ ought to be interpreted widely and literally, I agree with Forest and Bird at [40] in their submissions that the context of the NRMP demonstrates that the prohibition of an aerial drop of brodifacoum under Rule FWr.9 would be:
(a) Contrary to statutory purposes; (b) Produce an absurdity;
(c) Prevent the NRMP from achieving its purpose.
[73] As Ms Lancashire explained, the Appendices of the NRMP are structured in the same order and manner as the Act is (eg differentiated into land uses, rivers, water, discharges and coastal marine provision). Whilst each rule is not directly identified with a particular section of the Act, their ordering and their language show close linkages.104
[74] The immediate context for the interpretation of “deposition of toxic material” is provided by the adjacent activities either permitted or discretionary/non- complying under FWr.9. These include the placement of rock and other materials for the purpose of protecting structures in the river bed, habitat enhancement, erosion protection, flood control or river enhancement.105 These activities form a class of activities of a substantive physical nature. These activities differ markedly from the activities/discharges regulated under s 15 of the RMA or FWr.25 (general discharges). It is not appropriate to apply the prohibited activity status in FWr.9.3 to an activity that is not related to, or comparable with, the activities that are listed
within FWr.9 and its explanatory materials.106
103 Affidavit of JA Lancashire, 12 July 2017, at [52].
104 Submissions for the Council, 25 July 2017, at [40].
105 Affidavit of JA Lancashire, 12 July 2017, at [39].
106 At [48].
[75] Locating the planned discharge of brodifacoum within FWr.9 strains its meaning beyond what it can reasonably bear given the particular nature of the activities regulated under that provision.107 Further to this, it is unnecessary as the discharge of materials is regulated under FWr.25, and the discharge of contaminants like agrichemicals and fertiliser is regulated under FWr. 23 and 24 respectively. The proposed sweeping interpretation of the Group would not only forbid any aerial drop over the sanctuary (as ‘prohibited activities’ can never be granted resource consent108), it would also undermine the operation of multiple other rules in the NRMP. I am not persuaded that the expansive interpretation proposed by the Group should apply to the NRMP, as it would defeat the purposes of the plan and lead to absurd outcomes.
Judicial review grounds
[76] Judicial review is part of the supervisory function of the Court which ensures public power is exercised according to the law.109 It is primarily concerned with examining procedural compliance, not the substance of the decision itself, when assessing whether a decision should be allowed to stand.110
Law
[77] The Regulations under challenge were promulgated under s 360(1)(h) of the
RMA. The relevant part reads:
(1) The Governor-General may from time to time, by Order in Council, make regulations for all or any of the following purposes:
…
(h) prescribing exemptions from any provision of section 15, either absolutely or subject to any prescribed conditions, and either generally or specifically or in relation to particular descriptions of contaminants or to the discharge of contaminants in particular circumstances or from particular
107 Submissions for the Council, 25 July 2017, at [41].
108 Affidavit of JA Lancashire, 12 July 2017, annexure NCCJL4 at AD6.6.
109 Mercury Energy Ltd v Electricity Corporation of New Zealand Ltd [1994] 2 NZLR 385 (PC).
110 Aorangi School Board of Trustees v Ministry of Education [2009] NZHC 2270; [2010] NZAR
132 (HC) at [8].
sources, or in relation to any area of land, air, or water specified in the regulations.
[78] Consultation requirements for certain decisions under the section, including under ss 360(1)(bb), (ha) to (he), (hn) and (ho) are set out in ss 360(2AA) – 360(2B). Regulations promulgated under s 360(1)(h) have no such legislative consultation requirements.
[79] Section 360(1)(h) was part of the assent version of the RMA, although it did not include discharges into air. It was amended in 1993 to include discharges into air.111 This was a deliberate choice to widen the scope of the exemption power to exist as broadly as the requirements in relation to discharges in s 15 did. One other regulation has been promulgated under the section, which exempted the discharge of a named biological insecticide regulated in accordance with the Biosecurity Act from additional regulatory requirements under s 15 of the RMA. This was part of an effort to eradicate the painted apple moth.112
[80] As recently confirmed by the Court of Appeal in New Health New Zealand Inc v South Taranaki District Council, in respect of delegated legislation "matters are presumed to have been done regularly and lawfully and the courts will only interfere in a clear case".113 The onus is therefore on the Group to establish invalidity.114
[81] Determining the validity of subordinate legislation is a question of interpretation of the scope of the empowering provision. It requires analysis of the “the scope of the authority conferred by Parliament and the purpose for which those powers were conferred.”115 The purpose of a power must be determined in light of both the purpose of the Act as a whole, and the specific power conferred.
[82] The purpose of assessing the validity of regulations is not an opportunity to assess the reasonableness of the policy being promoted (here, the use of certain
111 Submissions for the Minister, 25 July 2017, at [32] – [34].
112 Submissions for the Minister, 25 July 2017, at [35].
113 New Health New Zealand Inc v South Taranaki District Council [2016] NZCA 462, [2017] 2
NZLR 13 at [194].
114 Edwards v Onehunga High School Board [1974] 2 NZLR 238 (CA) at 244.
115 Unison Networks Ltd v Commerce Commission [2007] NZSC 74, [2008] 1 NZLR 42 at [50].
VTAs to eradicate pests in select areas): the focus is on the legal limits of the power, not the merits of its use.116
Submissions
[83] The Group submits that the decision to create the Regulations is repugnant to the Regulations’ empowering legislation, the RMA. To this end the Group has submitted under each of the following five grounds of judicial review:
(a) the regulatory–making power must be not be repugnant to its empowering legislation and constitutional principles (otherwise known as ultra vires or invalidity);
(b) for a proper purpose;
(c) after taking into account all mandatory relevant considerations and no irrelevant considerations (including the requirement for natural justice);
(d) the decision must be reasonable; and
(e) the decision must not be based on a material error of fact or law.117
[84] There is recognition in New Zealand that grounds of review tend to overlap in practice and there may be no fine distinctions between them.118 In the following analysis I have followed the layout of the Group’s submissions. Each aspect builds on the previous, and should not be read as necessarily distinct from each other.
Are the Regulations repugnant to their empowering act?
[85] For repugnancy in judicial review, Graham Taylor says the following:
“Actions must not only fall within the empowering provisions, but must also be
116 Turners & Growers Ltd v Zespri Group Ltd (No 2) (2010) 9 HRNZ 365 (HC) at [23].
117 Submissions for the Group, 18 July 2017, at [122] and [125].
118 Wilson v Auckland City Council [2007] NZAR 711 (HC) at [17].
consistent with other provisions in the empowering enactment119 and with other enactments that are superior to it in the hierarchy of authority.” 120 The key authority on repugnancy in New Zealand is Alan Johnston Sawmilling Ltd v Governor- General where the issue was whether reg 4 of the Customs Export Prohibition Order
1996 (SR1996/233) prohibiting exports of indigenous timber products was lawful.121
The intention of reg 4 was to remove the protection of Maori-owned forests granted under legislation (the Forests Act 1949).122
[86] The administrative doctrine of repugnancy was described in the case as: “Orders-in-Council, being secondary legislation, cannot override primary legislation”.123 The court held:124
The rationale for and basis of the doctrine of repugnancy is the supremacy of Parliament. The Executive is not permitted to act contrary to Parliament’s intentions, as expressed in the statutes it has enacted.
In addition Wild J held:125
If regulations or an Order-in-Council are not made for the purpose authorised by the empowering statute, then they are made for an improper purpose, and are invalid (citations omitted) … Put another way, the Court can compare the purpose for which the regulation was made by reference to the purpose for which it was intended.
[87] The starting point is that the Regulations are valid and correctly promulgated. I must now engage in an assessment of the scope of the delegated power given under s 360(1)(h) to confirm whether the Regulations come within their scope.
[88] I agree with the respondents that the power bestowed upon the
Governor-General is very wide. Regulations can be made to prescribe exemptions
119 Official Assignee v Chief Executive, Ministry of Fisheries [2002] 2 NZLR 722 (CA). See also
Graham Taylor Judicial Review A New Zealand Perspective (3rd ed, LexisNexis, Wellington,
2014) at 14.33.
120 Alan Johnston Sawmilling Ltd v Governor-General [2002] NZAR 129. See also Graham Taylor
Judicial Review A New Zealand Perspective (3rd ed, LexisNexis, Wellington, 2014) at 14.33.
121 Alan Johnston Sawmilling above n 120, at 2.
122 At 15.
123 At 16.
124 At 17.
125 At 20.
“absolutely”.126 The Governor-General may prescribe “any conditions, either generally or specifically” in relation to particular contaminants, circumstances or sources, and in relation to land, air or water.127 It is hard to conceive how the regulatory-making power of the section could be delegated in any broader terms. It is also clear there are few fetters on the discretion to make this type of regulations. I have noted above that other subsections within s 360 have prescribed consultation processes and people. Parliament has intentionally not ascribed any consultation requirements to s 360(1)(h), reflecting the fact the discretion and the policy behind it rests “absolutely” with the Governor-General.
[89] The Group submitted that the Regulations “override the democratically produced regional policy statements and regional plans, so far as they relate to section 15 discharges”.128 This is correct. The question is whether the maker of the Regulations was empowered to take such a step by Parliament, to which the answer must be yes. The power to promulgate regulations under s 360(1)(h) is a broad discretionary power to explicitly override the bureaucratic requirements lower down
in the RMA hierarchy. The Group has not been able to establish that the decision made was not one expressly contemplated and authorised by Parliament. This aspect of the ground of repugnancy (which might otherwise be called ultra vires) must fail. This determination that the decision made was authorised by Parliament also addresses and disposes of the submissions of the Group that the decision breached the Bill of Rights Act 1688.129
Other elements of alleged repugnancy
[90] In a related submission the Group argued that the Regulations are “unclear and excessively wide”. The grounds they submitted for this argument included statements that are factually wrong regarding the effect of the Regulations on the permitted use of VTAs. The VTAs specified in the Regulations will not be able to be
used at “100% strength” unless approved elsewhere in the New Zealand regulatory
126 Resource Management (Exemption) Regulations 2017, reg 5.
127 At 5(b).
128 Submissions for the Group, 18 July 2017 at [110h].
129 Submissions for the Group, 18 July 2017, at [133]-[138].
framework.130 The Regulations do not exempt compliance with relevant codes of conduct or consultation requirements.131 As the Group noted in its submissions regarding s 13 of the RMA, the scope of the Regulations is only to remove the legal obligations imposed under s 15 of the RMA.132 Existing and parallel legal obligations under HSNO and ACVMA and any regulatory instruments, bylaws and standards issued under them are unaffected and still apply to the proposed and any
future drops.
[91] Allegations that Regulations take property from any person, or authorise such a taking in breach of the Magna Carta provision that no person “shall be dispossessed of his freehold … but by… the law of the land” are factually incorrect. This provision has been held to only apply if there has actually been a taking of
property.133 The private property rights of the sanctuary’s neighbours to sell their
livestock will not affected by the drop.134 The Minister adduced detailed evidence from the Manager of the Animal Products Team at the Ministry of Primary Industries as to the alleged effect of the aerial drop on surrounding farmers.135 The Simpsons, for example, do not have a licence to sell wild pork or venison and Ms Barker’s evidence was that there was nothing in the proposed drop that prevented them from selling their livestock.136
Mandatory considerations/improper purpose
[92] The purpose of the RMA is to promote “sustainable management of natural and physical resources”.137 This means 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 “sustaining the potential of natural and physical resources … to meet the reasonably foreseeable needs of future
generations; safeguarding the life supporting capacity of air, water, soil and
130 Affidavit of CM Denny, 7 July 2017, at [34], [47].
131 Affidavit of NR Smith, 10 July 2017, at [43].
132 Submissions for the Group, 18 July 2017, at [55].
133 Waitakere City Council v Estate Homes Ltd [2006] NZSC 112, [2007] 2 NZLR 149 at [46].
134 Affidavit of JE Barker, 10 July 2017, at [26].
135 At [12] - [17].
136 At [26].
137 RMA, s 5(1).
ecosystems and avoiding, remedying, or mitigating any adverse effects of activities on the environment”.138 The definition of environment includes “people and communities”, “amenity values” and “the social, economic, aesthetic and cultural conditions” that affect them.
[93] The Group submits that the following laws and policies are mandatory considerations for regulations promulgated under the section, and should be emphasised in the decision made and Regulations promulgated:
(a) Under the RMA:
(i)“Sustainable management” in s 5, with particular regard to the RMA’s system of checks and balances and protection of “amenity values”;
(ii) The intended high level of local and community input;139
(iii)The right of people to be consulted on decisions which affect them;140
(iv)Section 5 promoting use of resources that “enables communities to provide for their social, economic and cultural well-being, and for their health and safety”;
(v) Section 5 promoting the “safeguarding the life-supporting
capacity of air, water, soil and ecosystems”;
(vi)Section 5 promoting avoiding, remedying, or mitigation of adverse effects on the environment, the environment including people and communities, amenity values and social, economic,
aesthetic and cultural conditions; and
138 RMA, s 5(1) and (2).
139 Submissions for the Group, 18 July 2017, at [127].
140 Submissions for the Group, 18 July 2017, at [110g].
(vii)Section 7 promoting that “intrinsic values” in relation to ecosystems must be given particular regard:
a. Intrinsic values means aspects of those ecosystems which have value in their own right including their biological and genetic diversity, the essential characteristics that determine the ecosystems integrity, form, functioning and resilience; and
(b) Magna Carta and Bill of Rights Act 1688 as constitutional law; and
(c) National Policy Statement for Freshwater Management 2014;
(i)Objective 1A requires the safeguarding of “the life-supporting capacity, ecosystem processes and indigenous species including their associated ecosystems of freshwater and the health of people and communities, at least as affected by secondary contact with fresh water in sustainably managing the use and development of land and of discharges of
contaminants”.141
[94] I am obliged to note here that the National Policy Statement is made under the RMA and replicates the purposes and emphasis set out in it. No authority was given that this Statement is of greater authority than the Regulations. The Group could only refer to case law of a National Policy Statement overriding a proposed regional plan change.142 This is lower in the hierarchy than the Regulations and not an additional mandatory consideration.
[95] I agree with the submissions of the Minister that the mandatory considerations of the Act are much broader than those proposed by the Group. For actions taken under the RMA the following purposes must also be taken into
account:
141 National Policy Statement for Freshwater Management 2014, (NPS-FM 2014) at 9.
142 Environmental Defence Society Inc v The New Zealand King Salmon Co Ltd [2014] NZSC 38, [2014], 1 NZLR 593.
(a) Section 6 Matters of National Importance: “In achieving the purpose of this Act, all persons exercising functions and powers under it, in relation to managing the use, development, and protection of natural and physical resources, shall recognise and provide for the following matters of national importance:
(i)the preservation of the natural character of … lakes and rivers and their margins, and the protection of them from inappropriate … use and development;
(ii) …
(iii)the protection of areas of significant indigenous vegetation and significant habitats of indigenous fauna;
(iv)the maintenance and enhancement of public access to and along the coastal marine area, lakes, and rivers;
(v)the relationship of Maori and their culture and traditions with their ancestral lands, water, sites, waahi tapu, and other taonga;”
(b)Section 7 requires persons exercising powers under the Act to have particular regard to:
(i) “the ethic of stewardship:
(ii)the efficient use and development of natural and physical resources:
(iii) the maintenance and enhancement of amenity values: (iv) intrinsic values of ecosystems:
(v)maintenance and enhancement of the quality of the environment:”143
(c) Section 8 requires persons exercising powers under the Act to take the principles of the Treaty of Waitangi into account.
(d) The international obligations adopted under the Convention on
Biological Diversity144 entered into by New Zealand in 1993;
(i)Under which the New Zealand Biodiversity Strategy and Action Plans were promulgated in accordance with those international obligations and included obligations to:
(ii)Establish a system of protected areas or areas where special measures need to be taken to conserve biological diversity;
(iii)Rehabilitate and restore degraded ecosystems and promote the recovery of threatened species, inter alia, through the development and implementation of plans or other management strategies;
(iv)Prevent the introduction of, control or eradicate those alien species which threaten ecosystems, habitats or species; and to
(v)Develop or maintain necessary legislation and/or other regulatory provisions for the protection of threatened species and populations.
[96] The definition of ‘sustainable management’ is a “guiding principle which is intended to be applied by those performing functions under the RMA rather than a specifically worded purpose intended more as an aid to interpretation”.145 I disagree
with the Group’s proposed weighting of the considerations that prioritise local
143 RMA, above n 79, s 7.
144 1760 UNTS 79 (opened for signature on 5 June 1992, entered into force on 29 December 1993).
145 Environmental Defence Society Inc v King Salmon above n 145 at [24].
individual and community interests over the protection of endangered species as recommended by key New Zealand authorities. The RMA exists to manage the three-way tension between promoting development and use of resources, protecting local community amenity and enjoyment and protecting the environment from the adverse effects of human habitation and activity. This requires a constant balancing act between the interests of varying parties, with consideration being given to each.
[97] Here, the Minister and the Trust have referred to a large body of material regarding the conservation efforts in New Zealand and what each party is trying to achieve by eradicating pests. This purpose satisfies the RMA promotion of protection of natural resources and ecosystems with intrinsic value. This need for conservation and protection has been weighed and prioritised against the previous rights of individuals in certain regions to object to select pest eradication efforts under the RMA. This decision by the Minister and the process by which it were made have persuaded me that no mandatory considerations were excluded. Nor am I persuaded the Minister was pursuing an improper purpose in his weighting of different considerations under the RMA.
[98] The Group submits the Predator Free Policy 2050 was given excessive and undue weight in the decision to promulgate the Regulations. I am far from convinced that given the broader range of considerations the Minister and other consulting partners turned their minds to at various stages of consultation over two years, as set out in paragraph [26] above, that excessive weight was placed on this particular policy.
Is there a fundamental right of consultation in the RMA?
[99] The Group submits at [45] that under the RMA Part 5 there is a hierarchy of standards, policy statements and regional and district plans. Each of these must go through “extensive public and stakeholder consultation to identify effects and implications for people and communities, including both on amenity values and intrinsic values. … The importance of the hierarchy of the RMA and the public consultation for that Act have been recognised by the New Zealand Supreme Court
respectively in EDS v Sustain our Sounds and Discount Brands v Westfield”.146 The passage included in the Group’s submissions is:147
The district Plan is key to the Act’s purpose of enabling “people and communities to provide for their social, economic, and cultural well being”. It is arrived at through a participatory process, including through appeal to the Environment Court. The plan has legislative status. People and communities can order their lives under it with some assurance.
[100] The Group also set out the various requirements around resource consents under Part 6 of the RMA and the considerations that the consent authority must have regard to.
[101] The requirement of natural justice involves a duty on the decision maker to act in good faith and fairly listen to both sides, including that the parties be given adequate notice and opportunity to be heard.148 Where rights to be heard under natural justice exist, they must be protected by the court. However, there are no such rights to be heard on the decision made by the Minister. I find this for the following reasons:
(a) The decision to make the Regulations was a policy one, not a decision involving individual rights and interests. Such decisions do not trigger the principles of natural justice, even where those decisions may have negative impacts on the interests of individuals.149 This is consistent with the executive’s ability to regulate the types of activities which require resource consent, and which require public notification (as set out in the RMA).
(b)The RMA contains no provision requiring consultation on the making of regulations under s 360(1)(h), in contrast to other
regulation-making powers in the section.
146 Submissions for the Group, 18 July 2017, at [43] and [45].
147 Fowler Development Ltd v Chief Executive of the Canterbury Earthquake Authority [2013] NZHC 2173 at [10].
148 Laws of New Zealand Administrative Law (online ed) at [58].
149 Lumber Specialities v Hodgson [2000] 2 NZLR 347 (HC) at 375.
(i)Further to this, despite there being no requirement to be consulted, the Group did participate in the public consultation held by the Minister in 2016 regarding the promulgation of the Regulations. The fact the Group’s submissions were not followed does not mean natural justice has not occurred. This opportunity to be heard is all that natural justice requires.
[102] I disagree with the Group’s submissions as to the RMA’s emphasis of public participation and consultation. The RMA does not grant an unfettered right to individuals to be consulted or notified of decisions. The right to participate in planning processes is carefully regulated. Part 1 of Schedule 1 of the RMA provides for the public to make submissions in some cases, but permission to make further
submissions is carefully circumscribed by Schedule 1, s 8.150 For resource consent
decisions, s 95A gives the consent authority discretion as to whether to publicly notify applications, and that discretion is only fettered where the consent authority decides that the activity will have or is likely to have adverse effects on the environment that are more than minor.151 This and other recent amendments have removed any presumption in favour of notification and were intended to facilitate the processing of resource consents on a non-notified basis.152
[103] Even if there was a general right of the public to be consulted in all decisions made under the RMA, this consultation right is at the behest of Parliament. In structuring the regulation-making powers as it did, Parliament did not extend those consultation rights to commenting on policy decisions by the executive body, except in certain limited circumstances.
[104] Allegations that the Regulations are in breach of the New Zealand Bill of Rights Act 1990 (“NZBORA”) are also unsustainable. Section 27 of NZBORA guarantees New Zealanders a right to justice, which includes the guarantee that the principles of natural justice will be observed in decisions made in respect of a
person’s rights, obligations or interests protected by law.153 The requirements for
150 RMA, above n 79, Schedule 1, s 8.
151 At s 95(2)(a).
152 Submissions for the Minister, 25 July 2017, at [93].
153 New Zealand Bill of Rights Act 1990, s 27(1).
natural justice are contextual, and depend on the power being exercised154, as well as the nature of the interest being affected.155
[105] Here, the power is being exercised by the executive body and is a high policy decision to consolidate the processes under which certain VTAs are regulated. This is not a decision affecting the rights of an individual requiring judicial intervention.
[106] I note the submission of the Council that: “The planned discharge of brodifacoum has now been the subject of multiple planning assessments (Dr L Solly for the first respondent; Rosalind Squire, Consultant Planner s 42A Officer’s Report; Independent Commissioner R Lieffering for the hearing and decision (who sought and received further evidence from both Dr Solly and Ms Squire); and Ms Lancashire’s affidavit in response for these proceedings).”156 I agree with the general consensus of each expert and planner that the activity can proceed as planned with no more than minor impacts on the surrounding affected parties. Once this
decision has been made, consultation rights are curtailed under the RMA.
[107] The extent of consultation rights given and taken away are the decision of Parliament and cannot now be challenged obliquely through judicial review. The members of the public directly adjacent to (and most affected) by the proposed drop were given their right to be heard when they were consulted with under the original s
15 resource consent decision and had their submissions against the process heard. There was never any right for further parties (such a downstream users of waterways) to be consulted under the RMA and the Regulations have not changed this.
Unreasonableness
[108] A finding of unreasonableness, based on Wednesbury principles, will be made where a decision is so unreasonable that no sensible person could have made it.157
Something must be overwhelmingly wrong with the decision for a Court to attempt
154 Dotcom v United States of America [2014] NZSC 24, [2014] 1 NZLR 355 at [120].
155 Dotcom v United States of America [2014] NZSC 24, [2014] 1 NZLR 355 at [121]; Ali v
Deportation Review Tribunal [1997] NZAR 208 (HC).
156 Submissions for the Council, 25 July 2017, at [21].
157 Associated Provincial Picture Houses Ltd v Wednesbury Corp [1948] 1 KB 223 (CA).
to substitute its judgement for the decision-makers. I have not been persuaded by any of the Group’s evidence that the decisions of the Minister, the Trust or the Council were so unreasonable as to require judicial intervention.
Mistake of law and fact
[109] The mistake of fact as originally submitted by the Group was that the Minister in recommending the Regulations was mistaken as a matter of fact as to the benefits and harms of all VTA use in New Zealand.158 As I have stated previously in this judgment, it is not appropriate for me to get into a detailed scientific analysis of the benefits and harms of brodifacoum or 1080. I am satisfied that the Minister had sufficient scientific evidence before him that allowed him to proceed with the Regulations. The “high hurdle” of a mistake of fact amounting to an error of law has
not been reached by the Group or Te Whare in each party’s evidence.
[110] The second mistake of fact alleged is that the Minister was mistaken as to the existence of the 2006 Code as an approved operating plan under the ACVMA when recommending the regulations to the Governor-General. In doing so, it is alleged, he has promulgated the Regulations on the basis there was a sufficient regulatory framework regulating use of brodifacoum in particular, and 1080 more generally, while in fact there was not. This, the Group submitted, was a reviewable error of
law. In the Group’s further submissions dated 31 July it argued:159
It is now clear [the Regulations] were approved in reliance on an error of law about the legality and enforceability of the so-called duplicate controls under ACVM Act and HSNO. It is now clear that the Minister erred in advising Cabinet that the 2006 Code of practice imposed controls on the use of brodifacoum Pestoff 20R poison baits under both the ACVM Act and HSNO when the 2006 Code of Practice had expired in October 2010.
[111] The context for this issue is that section 21(2)(a) of the Agricultural Compounds and Veterinary Medicines Amendment Act 2007 (“ACVM Amendment Act”) amended the ACVMA so that codes of practice “requiring compliance by virtue of a condition imposed under s 23(1)(f) or [any regulations, were] deemed to
be an [approved] operating plan” until either the code was replaced by an operating
158 Submissions for the Group, 18 July 2017, at [160]-[165].
159 Further submissions for the Group, 31 July 2017, at [7].
plan or “the expiry of three years”.160 The use of the word ‘expiry’ appears to have caused confusion. I do not agree the purpose of this provision was to render codes of practice made under the ACVMA expired after three years. My understanding of the validity and enforceability of the 2006 Code, regardless of its status as an approved operating plan is as follows:
(a) Pestoff Rodent Bait 20R was registered in 1997 as a VTA by Animal Control Products Ltd under the Pesticides Act 1979 for use by the Department of Conservation (“DoC”).161 It is unclear whether any conditions were attached to that registration.
(b)Pestoff Rodent Bait 20R was re-registered in 2001 by the same company under the ACVMA as a trade name product. There do not appear to have been any conditions attached to its registration.162 Its registration number was V9014.
(c) The 2006 Code was developed by a group of advocates to “apply similar practices and principles to those which have been used successfully by DoC, on privately owned offshore islands as well as predator-proofed mainland islands and peninsulas”.163 The 2006
Code was approved by the Director-General (the chief executive of
the Ministry of Agriculture).
(d)At some unspecified date the label of Pestoff Rodent Bait 20R required compliance with the 2006 Code as a condition of use of the product. Failure to comply is an offence under s 55(1)(c) of the ACVMA. Compliance with the 2006 Code was also a condition of
approval of brodifacoum as a substance under HSNO. It is an offence
160 Agricultural Compounds and Veterinary Medicines Amendment Act 2007, s 21(2).
161 2006 Code above n 39, foreword.
162 According to its Registration Details set out at Ministry of Primary Industries Online
“Registration Details V009014” ACVM Register <eatsafe.nzfsa.govt.nz>.
163 2006 Code above n 39, foreword.
to fail to comply with any controls imposed by any approval under s
109(e) of HSNO.164
(e) The ACVM Amendment Act deemed the 2006 Code an approved operating plan. This approval expired after 3 years.
(f) Approved operating plans are required under the Agricultural Compounds and Veterinary Medicines (Exemptions and Prohibited substances) Regulations 2011 for any use of VTAs that are not registered trade name products.165 This regulation does not apply to registered trade name products like Pestoff Rodent Bait 20R.166
(g)Pestoff Rodent Bait 20R has been continually registered since 2001 and a condition of that registration as set out in Delegates Decision of
2012 is that users comply with the Code of Practice.167
[112] My understanding is that the Code of Practice has always been enforceable at law as a condition of use or approval under HSNO or ACVMA. The ACVM Amendment Act in 2007 affected the 2006 Code being deemed an “approved operating plan”. An approved operating plan is only mandatory if the product was not a registered trade name product.
[113] Accordingly I find there is no error of law on this ground. For completeness the above analysis applies equally to existing products containing 1080 which so far as I can tell are all registered trade products. Any new product containing 1080 would be required to either have an approved operating plan to qualify under the Agricultural Compounds and Veterinary Medicines (Exemptions and Prohibited substances) Regulations 2011 exemption from registration or submit itself for
registration under ACVMA. No evidence has been presented that this is not the case
164 Affidavit of CM Denny, 7 July 2017, annexure CMD-7.
165 Agricultural Compounds and Veterinary Medicines (Exemptions and Prohibited Substances) Regulations 2011, schedule 2, column 2.
166 At reg 5(3)(a).
167 Delegate’s Decision for granting an application for registration under s 21 of the ACVM Act
1997 V9014/08 (26 March 2012).
for use of products containing 1080, and that the Minister’s decision was flawed as a
matter of fact.
[114] Even if the Code was in some way ‘expired’ at the time the Regulations were promulgated, this had not been picked up on by the PCE, the Minister, any of the consulting departments, the product manufacturer or any parties using the product. The Code has continually been conformed to as if it were binding law, including in the Trust’s present application to use brodifacoum. I would classify any technical
‘expiry’ of the 2006 Code as an error not “significant enough” to qualify for judicial
intervention.168
Conclusion
[115] There is recognition in New Zealand that grounds of review tend to overlap in practice and there may be no fine distinctions between them.169 Here the Group’s submissions as regards judicial review on the ground of repugnancy can be summed up by the question: did the decision-makers (at each stage) “direct themselves properly in law and then act according to law. They must observe the criteria expressly or implicitly laid down in the legislation. So they must call their attention to matters they are bound by the statute to consider and they must exclude considerations which on the same test are extraneous.”170
[116] For the reasons set out above I find that the decision to promulgate the Regulations for use of brodifacoum, 1080 and rotenone was properly authorised and made under law, in accordance with all required considerations. The decision to make the Regulations was done under the express statutory power in s 360(1)(h) to create exemptions from s 15, either absolutely or subject to conditions, and either generally or specifically. This broad power afforded must be read in the context that section 15 allows discharges to be expressly allowed by “other regulations”, where s
13 does not. This delegation must be read as purposeful and intentional by
Parliament.
168 Bulk Gas Users Group v Attorney-General [1983] NZLR 129 (CA) at 136 per Cooke J.
169 Wilson v Auckland City Council [2007] NZAR 711 (HC) at [17].
170 New Zealand Maori Council v Attorney-General [Lands Case] [1987] 1 NZLR 641 (CA) at 678.
[117] There was no mistake of fact amounting to an error of law in the decision by the Minister to promulgate the Regulations. The confusion regarding the requirements for ‘approved operating plans’ under ACVMA have not been sustained to show any error of fact.
[118] Further I agree with the Minister’s submissions at [41] that sustainable management is not a unitary standard but a balancing act between competing interests (such as balancing the well-being of communities against sustaining the potential of resources to meet the needs of future generations). In this situation, the requirement in the RMA that “sustainable management” be promoted does not preclude the streamlining of the discharge of contaminants approval and use process by the Minister for the Environment in order for our native biodiversity to be protected through the eradication of invasive pests.
[119] The decision of the Trust (or the Council) to proceed with/permit the aerial drop was predicated on the sanctuary qualifying as having a “predator-proof fence”. The question was one of fact. From my review of the affidavit evidence I was not persuaded that the evidence in support of the Group (listing breaches individuals have witnessed, in the form of slips and culverts being propped open) is sufficient to preclude the sanctuary from having a “predator-proof fence” as required by the 2006
Code.
[120] Regarding the impact of section 13 of the RMA and the Fresh Water rules of the NRMP, I am persuaded by the arguments of the respondents. The interpretation of section 13 put forward by the Group would strip s 15 and s 360(1)(h) of any meaning and prohibit the release of any VTAs anywhere near any bodies of water. This cannot have been Parliament’s intention. The context of each section is sufficiently distinct in section 13 (issues involving physical and direct interference with river beds) and in section 15 (discharge, whether active or passive, of hazardous substances into air, land or water). Any interpretation which overlaps the two would lead to absurd outcomes.
Remedy
[121] For the reasons set out above the Group’s judicial review application fails. I am not persuaded that the issues raised in this proceeding require me to exercise my discretion to grant any of the declarations sought by the Group.
Costs
[122] I know of no reason why costs should not follow the event. I encourage the parties to agree costs but if they are unable to do so, I direct that the respondents and Forest and Bird file memoranda within 21 days of the date of this decision and the applicant and Te Whare 14 days after that.
Churchman J
Solicitors:
S Grey, Nelson
Duncan Cotterill, Nelson Crown Law Office, Wellington R Ennor, Nelson
P Anderson, Intervener
A Tobeck, Intervener
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