Otago Fish & Game Council v Otago Regional Council
[2021] NZHC 3258
•30 November 2021
IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTEPOTI ROHE
CIV-2019-412-104
[2021] NZHC 3258
UNDER the Resource Management Act 1991 IN THE MATTER
of appeals under ss 299 and 300 Resource Management Act 1991
BETWEEN
OTAGO FISH & GAME COUNCIL
Appellant
AND
OTAGO REGIONAL COUNCIL
First Respondent
AND
LINDIS CATCHMENT GROUP INCORPORATED
Second Respondent
AND
DIRECTOR-GENERAL OF CONSERVATION
Third Respondent
Hearing: 19, 20 April 2021 Appearances:
M F McClelland QC, P D M Tancock and M A Baker-Galloway for Appellant
A J Logan and T M Sefton for First Respondent P J Page and B Irving for Second Respondent
P D Williams and K Gaskell for Third Respondent
(P D Anderson (for Royal Forest and Bird Protection Society of New Zealand Inc) (intervening) excused)Judgment:
30 November 2021
JUDGMENT OF OSBORNE J
OTAGO FISH & GAME COUNCIL v OTAGO REGIONAL COUNCIL [2021] NZHC 3258 [30 November 2021]
TABLE OF CONTENTS
Introduction[1]
The parties[3]
The Lindis catchment[7]
PC5A[12]
The gallery scheme — to replace the races[20]
The competing scenarios in the Environment Court hearing[26]
The consideration of trout in the Judgment[29]
Appeals to the High Court
Appeals on questions of law only[47]
Mootness — the concept[55]
Mootness — the respondents’ submissions[60]
Mootness — the appellant’s submissions[66]
Fish & Game’s appeal grounds[69]
Question 1 — were one or more of the findings of the Environment Court contrary to the express provisions of the RMA or Conservation Act and in making the findings, did the Environment Court err in coming to conclusions
that no reasonable decision-maker could have reached?[73]
“Pest” as a descriptor for trout[75]
Discussion[97]
Question 2 – did the Court wrongly interpret Objective B1 of the NPSFM
in respect of trout?[103]
Discussion[114]
Question 5 – did the Environment Court err by taking the wrong approach
to and/or adopting the wrong legal test for s 7(h) RMA?[117]
Question 3 — did the Environment Court apply the wrong legal test when determining that the current degraded river (status quo) was the relevant
environmental baseline to assess the effects on trout?[129]
Discussion[145]
Question 4 — does “safeguarding the life supporting capacity of … water …
and ecosystems” in s 5 of the RMA rightly include the sustainable
management of trout and their habitat?[149]
Discussion[174]
Question 6 — was the conclusion that the lower minimum flow better protected habitat requirements for invertebrates and indigenous fish than a higher minimum flow of 900 l/s a conclusion that could not
reasonably have been come to on the evidence?[177]
Discussion[197]
Question 8 — did the Environment Court apply the wrong legal test when interpreting the terms “limit” and “over-allocation” from the
NPSFM to the Regional Plan and Lindis River?[201]
Mootness [211] Outcome [212] Costs [213]
This judgment was delivered by me on 30 November 2021 at 4.50 pm pursuant to Rule 11.5 of the High Court Rules
Registrar/Deputy Registrar Date:
Introduction
[1] The Lindis River (the Lindis) runs from headwaters near the Lindis Pass to the river’s confluence with the Clutha/Mata-Au south of Tarras.
[2] In October 2019, the Environment Court gave judgment on an appeal concerning a plan change — Plan Change 5A (PC5A) — which would determine matters relating to the minimum flow (MF) in the Lindis and the primary allocation of water from it (the Judgment).1 The Otago Regional Council (ORC) had by a decision in August 2016 (the Decision) established a MF of 900 l/s in the mainstem at the Ardgour Road flow recorder site (Ardgour FR) and a total primary allocation limit (PA) for the catchment of 1,200 l/s.2 By the Judgment, the ORC decision was cancelled and, instead, the Court directed that a MF of 550 l/s at Ardgour FR and a primary allocation of 1,640 l/s be inserted into the appropriate places of the Otago Regional Plan: Water (ORP:W).
The parties
[3] The Judgment is appealed by Otago Fish & Game Council (Fish & Game) on the ground that it contains a number (asserted at the hearing to be seven, plus one catch-all) of errors of law.
[4] Each Fish & Game Council has statutory powers under the Conservation Act 1987 to manage, maintain and enhance the sports fish in the recreational interests of anglers.3 Fish & Game is mandated to appear in planning proceedings to represent the interests and aspirations of anglers in the statutory planning process.4
1 Lindis Catchment Group Inc v Otago Regional Council [2019] NZEnvC 166 [Judgment].
2 Decisions of Council on Proposed Plan Change 5A (Lindis: Integrated Water Management) to the Regional Plan: Water for Otago, 13 August 2016.
3 Section 26Q(1)(e).
4 Conservation Act 1987, s 26QE.
[5]The appeal is opposed by the three respondents:
(a)the ORC, being the relevant planning authority;
(b)Lindis Catchment Group Incorporated (LCG), being a representative body of water permit holders in the Lindis catchment with a particular focus on their applications for water take permits to replace deemed permits expiring in October 2021; and
(c)the Director-General of Conservation, as administrative head of the Department of Conservation Te Papa Atawhai (DOC), the functions of which include the preservation so far as practicable of all indigenous freshwater fisheries and the protection of recreational freshwater fisheries and freshwater fish habitats.5
[6] In addition to submitting that the Environment Court did not err in law, the ORC and the LCG both asserted that, were there an error of law, the issues raised are moot.
The Lindis catchment
[7] From its headwaters close to the Lindis Pass, at 1,925 m above sea level, the catchment of the Lindis changes from steep hill country (receiving large falls of rain and snow in winter and spring) to lower country with little rainfall in summer, high temperatures, low humidity and high evapotranspiration rates.
[8] In the lower catchment, there has been a long history of irrigation for pasture and crops.
[9] The extracted water comes from the river’s mainstem and its nine tributaries. The existing irrigation scheme in the catchment is based on historical mining privileges which have since (under the RMA) become deemed permits.6 The Lindis irrigation scheme was characterised by four water races, the two most significant being
5 Section 6.
6 Resource Management Act 1991, s 417.
the Tarras race and the Ardgour FR race.7 The primary allocation of water derived from the face value of the permits was 3,777 l/s whereas LCG’s water monitoring records indicated that the maximum aggregate simultaneous rate of take had been 2,255 l/s. Under s 417 Resource Management Act 1991 (RMA), MF conditions could not be applied to the races in the scheme.
[10] The Environment Court, in relation to ground water interaction, identified particularly those reaches of the river which respectively lose water to ground water or gain water from ground water. The relevant reaches agreed by the parties were:8
…
•upper-gaining reach – between Lindis Peak FR and The Point;
•upper losing reach – The Point to Ardgour Road bridge – losses to groundwater of 372 l/s;
•lower gaining reach of 320 l/s – Ardgour Road bridge to Ardgour FR;
•lower losing reach – below Ardgour FR to Clutha confluence – losses to groundwater with an average of 450 1/s.
[11] The impact of the dewatering in the losing reaches (occurring during peak summer months with the impact of irrigation) was summarised by the Environment Court in the Judgment:
[38] During the irrigation season the losing reaches have sometimes run dry when flows were low because of the lack of rainfall and the volume of abstraction. Dewatering has also occurred elsewhere in the river in dry years. The significance of the losses to groundwater downstream of the Ardgour FR is that once the flow falls to 450 l/s at that point, there is a high probability that the river will dry out before it reaches the Clutha/Mata-Au confluence. Accordingly, the lower losing reach was the focus of much of the hydrological and ecological evidence in this case (particularly in relation to the ability to sustain habitat for trout over the summer months). The LCG proposal is designed to ensure that there is always a surface flow of 100 1/s in the Lindis river at the confluence.
As that passage indicates, the connection of the Lindis to the Clutha River/Mata-Au could be lost during summer.
7 Tarras race (up to 1,247 l/s permitted); Ardgour race (up to 780 l/s permitted). The remaining two races being the Point Rutherford race (up to 330.33 l/s permitted) and the Stacpoole race (also called Begg-Stacpoole) (up to 100 l/s permitted).
8 Judgment, above n 1, at [36] (footnotes omitted).
PC5A
[12] The ORC initiated PC5A to deal with these issues. Its function is as a management regime for surface and connected ground water in the Lindis catchment, allocating limits and MFs. PC5A was not designed to nor does it otherwise change the ORP:W. The objectives and policies of the ORP:W remain unaltered.
[13] PC5A was drafted at a time when there was no proposal to replace the races with an alternative irrigation scheme.
[14]As explained by the Environment Court in the Judgment:
(a)PC5A, as notified, proposed a MF of 750 l/s from 1 October to 31 May and a primary allocation limit (in sch 2A of the ORP:W) of 1,000 l/s. That would mean (crudely) that up to 1,000 l/s could be allocated from the Lindis provided the flow at Ardgour FR did not fall below 750 l/s;9
(b)The Decision (of 13 August 2016) found in favour of a 900 MF option, which represented just over 50 per cent of the mean annual low flow (MALF) of the Lindis. That was based on an assumption that water would continue to be taken through the existing water races.10
[15]The Commissioners’ specific recommendation was:11
Retain Proposed Plan Change 5A (Lindis: Integrated water management) subject to amendments as follows:
•Amend in Schedule 2A of the Water Plan the proposed minimum flow for primary allocation for the period 1 October to 31 May for the Lindis Catchment to 900 1/s.
•Amend in Schedule 2A of the Water Plan the primary allocation limit in Schedule 2A of the Water Plan to 1,200 l/s.
•Clarify in Schedule 2B of the Water Plan the dates to which the supplementary minimum flows apply:
•1 May to 30 November.
9 At [5].
10 At [7].
11 Decisions of Council, above n 2, at 1.
•1 December to 30 April.
•Remove from Schedule 4B.2 of the Water Plan the proposed restriction on irrigation takes from the Lower Tarras and Bendigo Aquifers.
[16] LCG appealed the Decision to the Environment Court. LCG initially (on appeal) sought a summer MF of 450 l/s at Ardgour FR and a primary allocation limit of 1,900 l/s, with the MF figure later increased to 550 l/s and the primary allocation reduced to 1,640 l/s. The Environment Court referred to LCG’s amended relief as “the 550 MF option”.12
[17] As summarised by the Environment Court, the obvious options for MF and primary allocation figures for consideration on the appeal were:
(a)the status quo option — what was occurring at the time;
(b)PC5A as notified in 2015;
(c)the 900 MF option (in terms of the Decision);
(d)the 550 MF option (being LCG’s amended appeal proposal);
(e)a naturalised flow (the NF option) with no water takes other than for domestic and stock water.13
[18] Fish & Game joined the appeal as a party under s 274 RMA, having been a submitter at the Council level PC5A hearing. It sought to uphold the Decision.
[19] Under the transitional provisions of the RMA, the deemed permits held by members of the irrigation scheme were to expire on 1 October 2021.14 Resource consents would be required for further allocation.
12 Judgment, above n 1, at [8].
13 At [9].
14 At [77].
The gallery scheme — to replace the races
[20] Mediation commenced in relation to the appeal in December 2016. Through that process, the LCG concluded that if there was to be progress towards agreement and success on the appeal, the LCG would have to abandon the races and design an alternative irrigation scheme. What was then designed came to be known as the “gallery scheme”, a network of ground water bores, hydraulically connected (via ground water) to the mainstem of the Lindis. The new bore locations were further down the catchment than the irrigation race intakes, which enabled water to be left in the river for longer. The gallery scheme required a primary allocation of 1,639 l/s, as opposed to the historically used 2,255 l/s.
[21] The LCG’s economic modelling pointed to a MF of 550 l/s as the threshold for the financial viability of the gallery scheme. Hence the decision of the LCG on its appeal to amend the proposed MF figure from 450 l/s to 550 l/s.
[22] The parties undertook further mediation in July 2017. The parties’ experts modelled the hydrological consequences of the gallery scheme. Through mediation, the ORC and DOC changed their position to support the LCG’s appeal. It was agreed by the parties that the LCG should file its permit applications for the gallery scheme and that those applications should be referred directly to the Environment Court. That was done.
[23] The Environment Court recorded the outcome of the mediation in the Judgment:
[17] At mediation in both proceedings the LCG and ORC reached agreement on a primary allocation limit of 1,650 1/s, with a summer minimum flow of 550 1/s at the Ardgour flow recorder site, subject to:
(a)the closure of three major race intakes (the Tarras, Ardgour and Begg-Stacpoole Races);
(b)the replacement of three major race intakes by a system of “gallery takes” (i.e. takes from groundwater) downstream of the Ardgour Road bridge;
(c)LCG applying for consents for the gallery scheme; and
(d)LCG providing pulse flows of 1,000 1/s, if the flow at the Ardgour flow recorder is less than 700 1/s for 14 consecutive days.
[24] The relationship between the matters remaining for determination on the appeal and the conditions which would attach to the water permits was then explained by the Environment Court:
[18] Other than the LCG and ORC’s proposed allocation limit of 1,650 1/s and the minimum flow of 550 1/s, none of those operating conditions are proposed to be included in the ORP:W. Rather, the LCG and the ORC rely on conditions in the water permits to achieve those outcomes. The primary allocation limit has subsequently been proposed to be reduced to 1,639 1/s (which LCG and some witnesses rounded up to 1,640 1/s) to be consistent with the sum of the water permit takes applied for and recently granted. That regime is opposed by almost all of the section 274 parties.
[25] At that point the appeal and the directly-referred consent applications were directed to be heard together. As a consequence, following a hearing which commenced on 5 November 2018, the Environment Court came to deliver two judgments — the Judgment (on PC5A, now the subject of this appeal) and a series of decisions in relation to the Lindis (Water Permits Decision). The Water Permits Decision began with an interim decision dated 8 November 2019.15 Those decisions adopted the MF of 550 l/s as a condition limiting the exercise of permits. Fish & Game initially filed a notice of appeal against the Water Permits Decision but subsequently discontinued that appeal. There is no longer any contest to the water permits as granted.
The competing scenarios in the Environment Court hearing
[26] The Environment Court adopted “scenario” names for the various flow regime options. Those scenario names included:16
·Races 900/1,200 (based on the (Commissioners’) Decision);
·Races 900/2,255 (the 2,255 l/s figure representing the maximum
15 Lindis Catchment Group Inc v Otago Regional Council [2019] NZEnvC 179 [Water Permits Decision].
16 Judgment, above n 1, at [219], Table 5.1.
instantaneous daily mean rate of take upstream of Ardgour FR);
·Galleries 550/1,639 (being LCG’s proposal on its appeal supported by the ORC);
·Galleries 900/1,200 (advanced by Fish & Game).
[27] Galleries 900/1,200 was advanced at the Environment Court hearing by Fish & Game as a galleries version of the Commissioner’s Decision (Races 900/1,200).17 The Environment Court, upon its consideration of both the modelling evidence18 and the evidence as to efficiency,19 found that Fish & Game’s Galleries 900/1,200 was impracticable and would never be installed.20
[28] This led to the Environment Court’s ultimate conclusion, in relation to the two competing scenarios which were available (Fish & Game’s Races 900/1,200 and the LCG’s Galleries 550/1,639), that Galleries 550/1,639 was preferable when assessed against all relevant considerations.21 This conclusion stemmed from a number of key findings that were made after a hearing that was taken up with testing the feasibility and hydrological consequences of LCG’s Galleries proposal (as compared with alternative scenarios).
The consideration of trout in the Judgment
[29] The Court, at [22]–[40] of the Judgment, first considered the current hydrology of the Lindis, including the fact that its losing reaches during the irrigation season have sometimes run dry when flows were low, with a high probability that at low flow the river will run dry before it reaches the Clutha/Mata-Au confluence. The Court observed that accordingly the lower losing reach was the focus of evidence in relation to the ability to sustain habitat for trout over the summer months. The Court noted that the LCG proposal was designed to ensure there is always a surface flow of 100 l/s in the Lindis at the confluence.
17 At [234].
18 At [234].
19 At [460]. The Court referred to the Galleries 900/1,200 as “implausible” (at [354]).
20 At [460].
21 At [531].
[30] The Court then discussed, at [41]–[47] of the Judgment, water quality and ecological health.
[31] At [48]–[70], the Court turned to discuss the fish of the Lindis. The Court referred to the evidence of Dr Olsen, an environmental scientist called by LCG and ORC. His (agreed) information on native fish included the fact that Clutha flathead galaxias are mostly confined to tributaries upstream of water takes, mostly as a consequence of predation by trout.22 Another witness, Dr Jowett, concluded it was not practical to manage flows in the river such that trout would be excluded from the river to protect the Clutha flathead galaxias.23 Another witness, Dr Dunn, called by DOC, considered the Lindis catchment population of Clutha flathead galaxias to be highly important for the persistence of the species.24
[32] The Court, in its discussion at [56]–[59], referred to brown trout and rainbow trout, being introduced species found in the river (brown trout throughout the Lindis catchment and rainbow trout largely in the mainstem and lower reaches of Cluden Stream).25 The Court observed that the Lindis is a spawning tributary of the Lake Dunstan fishery, supports a local fishery, and contributes recruits to the fisheries of the Upper Clutha River and Lake Dunstan.26 The Court noted evidence that the Upper Clutha River (and Lake Dunstan) are “nationally important trout fisheries”, with the Lindis having significant fish spawning areas and juvenile habitat.27
[33]The Court noted the impact of trout upon their food sources:
[59] Of course, the presence of trout is not benign for their food species. While of all the Lindis tributaries, Cluden Stream stands out as a high value trout spawning and rearing stream, it is exceptional in that Clutha flathead galaxias do not occur below any of the existing takes other than Cluden Stream. As we have recorded, only in Short Spur Creek and Long Spur Creek are the galaxids free from competition with and predation by trout.
22 At [48].
23 At [49].
24 At [55].
25 At [56].
26 At [56].
27 At [57].
[34] The Court then discussed other aspects of the river (river birds, water races and farming and irrigation), before identifying the provisions of the ORP:W and PC5A, and other legal issues which required consideration. The Court’s next discussion involved predicting the future hydrological characteristics of the river. The Court then came considered how effective the different scenarios would be in achieving the objectives of the ORP:W.
[35] In the context of the Court’s identification of the ORP:W’s objectives, the Court set out an extended discussion (at [358]–[390] of the Judgment) under the heading: “Protecting the presence of trout”.
[36]The Court introduced this discussion briefly:
[358] One of the natural values identified in Schedule 1A is the “presence of trout”. Adverse effects on trout are to28 be avoided in preference to being remedied or mitigated.
[37] The Court referenced evidence provided by anglers and angling organisations.29
[38] The Court next turned to the evidence of Dr Jowett.30 The Court noted Dr Jowett’s opinion that, compared to the Status Quo Flow Option, both Galleries 550/1,639 and Races 900/2,255 would be significantly better for most fish species by providing higher flows over much of the river but that, overall, the Galleries scenario would probably support higher trout populations than the Races scenario.31
[39] The Court then referred to Dr Jowett’s evidence as to the effects of different flows on juvenile trout, noting his opinion that predation in the lower reach of the Lindis will have minimal effect on the population dynamics and fish stock of the Clutha River and Lake Dunstan.32 The Court also noted Dr Jowett’s conclusions as to increases in in-stream habitat at MF for both adult and juvenile trout.
28 Otago Regional Plan: Water, Policy 5.4.2(1)(a).
29 Judgment, above n 1, at [359]–[369].
30 At [370]–[375].
31 At [370]–[371].
32 At [372]–[373].
[40] The Court noted but rejected the different opinion of Dr Gabrielsson, who had based his evidence on a discredited model.33
[41] The Court then turned to consider “fish passage and predation in the Crossing reach”, that is, the reach of river between the Tarras Crossing bridge at SH8 and the Clutha/Mata-Au. Dr Ryder’s evidence in particular was reviewed, with detailed reference to the fish passage criteria he had used. It was contrasted with that of Dr Hayes, Dr Closs and Dr Gabrielsson (each of whom had disagreed with Dr Ryder in this regard).
[42] The Court then went on to consider the effect on “native fish habitat” under a heading “Protecting Indigenous Values”.34
[43]The needs of primary industry were next considered.35
[44] The Court then brought together its conclusions on how effective the different scenarios would be in achieving the ORP:W’s objectives. It found both the 550 MF and 900 MF scenarios to have few or no adverse effects on the sch 1A natural values compared to the Status Quo. Only the Naturalised Flow option was found to be more effective.36 While the Court recognised neither the 550 MF or 900 MF options avoids adverse effects on natural values, the Court observed the principal contest is between those two scenarios.37 That said, the Court also concluded the 550 MF option is more effective in meeting the needs of industry.38
[45] The Court’s discussion of the efficiency of the options at [405]–[466] of the Judgment led to the conclusion that Galleries 900/1,200 was simply impracticable and would never be installed, while Galleries 550/1,639 was considerably more efficient than either Races 900/1,200 or Races 900/2,255.39
33 At [376].
34 At [391]–[394].
35 At [395]–[400].
36 At [401]–[402].
37 At [403].
38 At [404].
39 At [460]–[462].
[46] The ORC had presented evidence completed by a hydrologist from the National Institute of Water & Atmospheric Research (NIWA) which demonstrated that LCG’s gallery scheme would leave more water in the river, over a longer stretch of the river, and more often, than if the ORC’s 900 l/s MF limit were imposed on the existing race-fed irrigation scheme.40
Appeals to the High Court
Appeals on questions of law only
[47] Fish & Game, as a party to the proceeding before the Environment Court, was entitled to appeal on a question of law to this Court.41 Insofar as an Environment Court decision is on the merits (not involving a question of law), the decision is final.42
[48] In Countdown Properties (Northlands) Ltd v Dunedin City Council, this Court identified the principles on which its appellate powers are exercised under the Act, recording:43
… we note that this Court will interfere with decisions of the Tribunal only if it considers that the Tribunal –
(a)applied a wrong legal test; or
(b)came to a conclusion without evidence or one to which, on evidence, it could not reasonably have come; or
(c)took into account matters which it should not have taken into account; or
(d)failed to take into account matters which it should have taken into account.
[49] It has also been recognised that the High Court may set aside a decision as a matter of law if the Environment Court has not relevantly applied the principles of natural justice.44
40 At [238].
41 Resource Management Act, s 299(1).
42 Section 295.
43 Countdown Properties (Northlands) Ltd v Dunedin City Council [1994] NZRMA 145 (HC) at 153. See also Transpower New Zealand Ltd v Auckland Council [2017] NZHC 281 at [52].
44 Meridian Energy Ltd v Central Otago District Court [2011] 1 NZLR 482 (HC) at [132]–[133],
[148] and [166]. See also Saddle Views Estate Ltd v Dunedin City Council [2017] NZHC 1727, [2017] NZRMA 505 at [43].
[50] The High Court recognises and respects the specialist nature of the Environment Court. Thus, in Countdown Properties (Northlands) Ltd, this Court observed:45
… the Tribunal should be given some latitude in reaching findings of fact within its areas of expertise …
[51] In Guardians of Paku Bay Association Inc v Waikato Regional Council, Wylie J expanded upon the respective roles of the Environment Court and the High Court in relation to their decision-making:46
[31] Relief ought not to be granted unless an identified error of law has materially affected the Environment Court’s decision. The Environment Court is the sole decision maker responsible for the balancing process required under the Act, and that process is an integral part of the consideration of resource management consents under s 104. The weight to be given to the assessment of relevant considerations is for the Environment Court and is not for reconsideration by this Court as a point of law.
[32] It was also common ground that the Court must be vigilant in resisting attempts by litigants disappointed by Environment Court decisions to use appeals to the High Court in an endeavour to re-litigate factual findings made by the Environment Court. This Court can only intervene in such situations where the Environment Court has come to a decision to which, on the evidence, it could not reasonably have come. This can be described as a situation in which there is no evidence to support the determination, or as one in which the evidence is inconsistent with and contradictory to the determination, or as one in which the true and only reasonable conclusion contradicts the determination. It is trite law however that the sufficiency of evidence, rather than the want of it, cannot amount to a point of law.
[52] Consistently with that approach, this Court in Contact Energy Ltd v Waikato Regional Council identified limits to what the (former) Planning Tribunal might be expected to record in relation to factual and legal issues.47 There, Woodhouse J observed:
[64] Appeals purportedly on points of law not infrequently turn into a contention that the Tribunal did not refer in its decision to a matter of fact or of law in issue in the hearing. That, of itself, is not an error of law. This includes, for example, an absence of reference in the decision to evidence which may be in direct conflict with a conclusion expressly recorded, or evidence given at the hearing which might arguably indicate a conclusion different from that recorded by the Tribunal.
45 Countdown Properties (Northlands) Ltd v Dunedin City Council, above n 45, at 153.
46 Guardians of Paku Bay Association Inc v Waikato Regional Council [2012] 1 NZLR 271 (HC) (footnotes omitted).
47 Contact Energy Ltd v Waikato Regional Council (2007) 14 ELRNZ 128 (HC).
[65] There is no obligation to record every finding on every piece of evidence. There is no obligation to make a finding of fact on every fact in issue, and generally speaking there is no obligation to make a finding of fact at all: see Rodney District Council v Gould and Anor (2006) NZRMA 217; Auckland City Council v Wotherspoon [1990] 1 NZLR 76 at 82-89. There is also no obligation on a Tribunal to record every part of its reasoning process on the facts or on the law, and notwithstanding the fact that the conclusions reached may involve unarticulated rejections of contentions of witnesses or submissions for parties on the law.
These observations, in relation to the former Planning Tribunal, apply equally to the Environment Court.
[53] An error of law, if established, must be material to one of the Court’s ultimate determinations — an erroneous obiter dictum is not a material error of law.48
[54] Finally, on appeals from the Environment Court to this Court, the appellant bears the onus of establishing an error of law.49
Mootness — the concept
[55] The circumstances in which appellate courts will decide an appeal notwithstanding its lack of practical effect on the rights of the parties before the Court are exceptional.
[56] The leading New Zealand authority is the decision of the Supreme Court in R v Gordon-Smith.50 The Court there stated:51
In general, appellate courts do not decide appeals where the decision will have no practical effect on the rights of parties before the court, in relation to what has been at issue between them in lower courts. This is so even where the issue has become abstract only after leave to appeal has been given. But in circumstances warranting an exception to that policy, provided the court has jurisdiction, it may exercise its discretion and hear an appeal on a moot question.52
48 Orewa Land Ltd v Auckland Council (2011) 16 ELRNZ 417 (HC) at [8]; and Lyttelton Port Company Ltd v Canterbury Regional Council [2002] NZRMA 102 (HC) at [43].
49 Smith v Takapuna City Council (1988) 13 NZTPA 156 (HC).
50 R v Gordon-Smith [2008] NZSC 56, [2009] 1 NZLR 721.
51 At [16].
52 Borowski v Canada (Attorney-General) [1989] 1 SCR 342 at 353.
[57] A number of reasons exist for the general rule, which the Supreme Court identified thus:
[18] The main reasons for the general policy of restraint by appellate courts in addressing moot questions are helpfully identified by the Supreme Court of Canada in Borowski v Attorney-General.53 They are, first, the importance of the adversarial nature of the appellate process in the determination of appeals, secondly, the need for economy in the use of limited resources of the appellate courts and, thirdly, the responsibility of the courts to show proper sensitivity to their role in our system of government. In general advisory opinions are not appropriate.
[58] This approach has been applied in relation to appeals to this Court under the RMA as, for instance, in Auckland Transport v Western Properties Ltd.54
[59] The Court is not, by mootness, deprived of the jurisdiction to hear and determine an appeal; rather it has a discretion whether to hear the appeal.55 That discretion is not generally exercised in favour of a hearing when the decision will have no practical effect on the rights of parties before the Court in relation to what was in issue in lower courts.56 The policy of restraint in dealing with moot appeals is based on:57
(a)the importance of the adversarial nature of the appellate process;
(b)the need for economy and the use of limited resources of appellate courts; and
(c)the responsibility of the Courts to show proper sensitivity to their role in the system of government; in general, advisory opinions are not appropriate.
In Baker v Hodder, the Supreme Court identified examples of exceptional circumstances in which a court may decide to hear a moot appeal, such as when there was serious procedural unfairness at the first hearing or if it is in the broader public interest to do so.58
53 At 358–363. See also the subsequent discussion in Smith v The Queen and Attorney-General of Ontario [2004] 1 SCR 385.
54 Auckland Transport v Western Properties Ltd [2017] NZHC 1470, [2017] NZRMA 457 at [5]–[8].
55 R v Gordon-Smith, above n 50, at [16]; Baker v Hodder [2018] NZSC 78, [2019] 1 NZLR 94 at [32].
56 R v Gordon-Smith, above n 50, at [16]; Baker v Hodder, above n 55, at [32].
57 Baker v Hodder, above n 55, at [32].
58 Baker v Hodder, above n 55 at [32].
Mootness — the respondents’ submissions
[60] Fish & Game initially appealed the Water Permit Decision but later withdrew that appeal. As a result, the water permits granted on the basis of the PC5A Judgment are no longer contested. The consent holders must install the galleries system in order to lawfully irrigate and the terms and conditions of their take and use of water are consistent with the allocation limit and the MF in the PC5A decision. The permit holders are entitled to take and use water in accordance with the condition of their permits by reason of those permits regardless of any rule in a Regional Plan, such as the ORP:W. Such is the effect of s 14(3)(a) RMA which provides:
(3)A person is not prohibited by subsection (2) from taking, using, damming, or diverting any water, heat, or energy if—
(a)the taking, using, damming, or diverting is 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; or
…
(emphasis added)
[61] The National Policy Statement for Freshwater Management (NPSFM) referred to in the Environment Court was the 2014 version as amended in 2017 (NPSFM 2014).
[62] Fish & Game dispatched the finding of the Environment Court that “the scheme of the Act as particularised in the NPSFM shows that ecosystems containing indigenous biodiversity are relatively more important”59 and that “[i]ntroduced species like trout and other salmonids are not directly safeguarded”.60
[63] The Court drew these conclusions from the provisions of the NPSFM-2014 which the ORP-W had to give effect to.61
[64] NPSFM-2014 has since been replaced by the 2020 National Policy Statement (NPSFM-2020). Were the Environment Court required to reconsider the matters of
59 Judgment, above n 1, at [473].
60 At [185].
61 Resource Management Act, s 67(3)(a).
freshwater management affecting the Lindis River, it would now do so in terms of the NPSFM-2020, the provisions of which include:
(a)Policy 9 — the habitats of indigenous freshwater species are protected; and
(b)Policy 10 — the habitat of trout and salmon is protected, insofar as this is consistent with Policy 9.
[65] Both the ORC and LCG submitted that Fish & Game’s contention that the Environment Court’s conclusion wrongly applied the NPSFM is moot, having regard to the fact that Policies 9 and 10 of the (replacing) NPSFM-2020 would be met. They referenced the findings in the Environment Court in relation to the effects of implementing Galleries 550/1,639 (it was likely to increase the number and size of trout62) and that under the NPSFM-2014 indigenous biodiversity are relatively more important63 as conclusions that would accord with NPSFM-2020.
Mootness — the appellant’s submissions
[66] Fish & Game submitted that the Judgment contains all of the Court's reasoning on the key issues relating to the minimum flow and primary allocation. In that sense, Fish & Game submitted it has appropriately appealed the “final decision”, despite the Environment Court's series of subsequent water permits decisions.
[67] It was explained that Fish & Game, as a sensible litigant, decided to appeal the Judgement rather than advancing appeals across all of the related decisions. It contended this was all that was necessary to challenge the PC5A. Further, Fish & Game submitted that the permit decisions issued after the Judgment cannot be used to “prop up” the Court’s reasoning in the Judgment.
[68] Fish & Game disagree with the notion that the appeal will have no practical effect. To the contrary, they noted that the alleged errors of law in the Judgment, as well as the outcome of this appeal, are being “watched carefully” by other regional
62 Judgment, above n 1, at [207].
63 At [172] and [473].
councils, cited in Council hearings and have gained momentum for use in other Otago Catchments in respect of water permit applications to replace deemed permits. Fish & Game also submitted that any provisions that are ultimately inserted into the regional plan will have a practical impact in the following ways:
(a)any amendments to PC5A will impact future applications for water permits, for example when the current water permits expire or replacements are applied for, or if the water permits that have been granted are varied or lapse under s 125 RMA;
(b)the MF and primary allocation provisions in the ORP:W will be relevant to any review by the Council of the water permit conditions pursuant to s 128(1)(b) RMA. This provision allows the Council to review a consent condition if the regional plan has an operative rule that relates to maximum or minimum levels or flows and the Council considers it appropriate to review the condition of the water permit to enable the rule to be met;
(c)amendments to PC5A will be relevant to any application by the water permit holders for a change or cancellation of conditions of their water permit under s 127 RMA; and
(d)if the Fish & Game appeal succeeds it could impact on any application by the water permit holder to transfer the water permit to another site within the Lindis catchment under s 136(2)(b) RMA.
Fish & Game’s appeal grounds
[69] By its notice of appeal, Fish & Game identified nine alleged errors in the Judgment. For this appeal hearing, however, Fish & Game refined its grounds to eight alleged errors of law reframed as the questions for appeal:
Question 1 — were one or more of the findings of the Environment Court contrary to the express provisions of the RMA or Conservation Act and, in making the findings, did the Environment Court err in coming to conclusions
that no reasonable decision-maker could have reached?
Question 2 — did the Court wrongly interpret Objective B1 of the NPSFM in respect of trout?
Question 3 — did the Environment Court apply the wrong legal test when determining that the current degraded river (the status quo) was the relevant environmental baseline to assess the effects on trout?
Question 4 — does “safeguarding the life supporting capacity of … water … and ecosystems” in s 5 RMA rightly include the sustainable management of trout and their habitat?
Question 5 — did the Environment Court err by taking the wrong approach to and/or adopting the wrong legal test for s 7(h) RMA?
Question 6 — was the conclusion that the lower minimum flow better protected habitat requirements for invertebrates and indigenous fish than a higher minimum flow of 900 l/s a conclusion that could not reasonably have been come to on the evidence?
Question 7 — did the cumulation of the errors set out in 1–6 lead the Environment Court to make a decision that was wrong in law and/or more manifestly unreasonable?
Question 8 — did the Environment Court apply the wrong legal test when interpreting the terms “limit” and “over-allocation” from the NPSFM to the Plan and Lindis River?
[70] As counsel for Fish & Game saw a benefit in dealing with those questions in a different order, and did so through three counsel, I will analyse the submissions in the order presented.
[71] Counsel for Fish & Game did not develop oral submissions in relation to “Question 7”. Question 7 inherently rests on the proposition that other legal errors are
established and the cumulation of those errors (although not on their own material) had a material effect in that they cumulatively caused the Court to err in law.
[72] In the analysis which follows, I do not find that any of the findings identified by Fish & Game as “Errors 1–6” constituted an error of law, with the consequence that Question 7 will be answered “No”. It will accordingly not be discussed again.
Question 1 — were one or more of the findings of the Environment Court contrary to the express provisions of the RMA or Conservation Act and in making the findings, did the Environment Court err in coming to conclusions that no reasonable decision-maker could have reached?
[73] Central to this first ground of appeal is the proposition that trout are accorded a special value status under the RMA and the Conversation Act, which status was ignored in the Environment Court’s finding, with the Court as a result coming to findings no reasonable decision-maker (exercising decision-making powers under the RMA) could have reached.
[74] Fish & Game’s notice of appeal identified six particular conclusions of the Court as being beyond reasonable decision-making (with paragraph references from the Judgment):
(a)“[t]he presence of trout debases the integrity of ecosystems of indigenous fauna and flora” (at [172]);
(b)from an ecological point of view trout are “an introduced pest” (at [205]);
(c)salmonids have an “ambiguous status” under the RMA (at [212]);
(d)the presence of trout “degrades indigenous ecosystems” (at [212]);
(e)when it comes to safeguarding the life-supporting capacity of water, “ecosystems containing indigenous biodiversity are relatively more important” (at [473]); and
(f)the presence of trout means the Lindis cannot be considered worthy of returning to, or compared to, a natural state (at [512]).
“Pest” as a descriptor for trout
[75] It was when the Environment Court was assessing effects of the various scenarios on “natural values” that the Court compared eels and trout:64
[205] So when we come to consider not simply the high “natural value” of eels, but the Lindis River as eel habitat, we may need to consider natural flows and water quality. However, the same cannot be said, or at least not within anything like the same force, of trout since from an ecological point they are an introduced pest (albeit one with special status under section 7 RMA).
[76] Counsel for Fish & Game challenged the use of “pest” as a descriptor of trout. Mr McClelland QC noted that the Biosecurity Act 1993 has a definition of “pest”, adopted in NPSFM-2014. He submitted, given the Environment Court’s jurisdiction over pest management plans, the Court “should have used this language cautiously in a Regional Plan Change context”.
[77] It is clear from the Judgment that the term “pest” was not being used by reference to a particular definition. While counsel for other parties accepted the term may appear “unkind”, “colourful” or “provocative”, the description itself did not impact on the Court’s evaluation of the appropriate flow and allocation. Any suggestion that the Court was using the expression “pest” in some legally defined or technical sense, or with an application beyond the Lindis, would involve a misconception of the Judgment. “Pest” as used in the Judgment connotes nothing more than a recognition that trout have predated upon and severely affected some indigenous species in the Lindis.
[78] The fact the Court, having referred to trout as “an introduced pest”, immediately qualified that with the recognition “albeit one with special status under section 7 RMA” clearly indicates the Court’s identification of the required focus on s 7 RMA.65
64 Judgment, above n 1.
65 At [205].
[79] The criticism arising is as to the terminology used and cannot be related to any consequential flaw in reasoning.
[80] Counsel for Fish & Game referred to historical, statutory recognition of the desirability of the protection and propagation of trout (and salmon). Mr McClelland observed that in very early legislation (such as the Fisheries Conservation Act 1884) and through to the current regime (under the Conservation Act) a “vein of habitat protection” can be seen.
[81] Turning to the planning context, within which the Environment Court was operating in this case, Mr McClelland pointed to the regime of recognition under the RMA. He began with the sustainable purpose of the Act under s 5, which provides:
5 Purpose
(1)The purpose of this Act is to promote the sustainable management of natural and physical resources.
(2)In this Act, sustainable management 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—
(a)sustaining the potential of natural and physical resources (excluding minerals) to meet the reasonably foreseeable needs of future generations; and
(b)safeguarding the life-supporting capacity of air, water, soil,
and ecosystems; and
(c)avoiding, remedying, or mitigating any adverse effects of activities on the environment.
(emphasis added)
[82] As counsel noted, at this purpose level, the legislation does not distinguish between indigenous and introduced species.
[83] Counsel for Fish & Game placed particular emphasis on the provisions of s 7(h) RMA as conferring on trout (and salmon) a “special status”. That section relevantly provides:
7 Other matters
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 have particular regard to—
…
(h) the protection of the habitat of trout and salmon:
…
[84] Counsel linked this singling out of the habitat of trout and salmon as deliberate, stemming from the recognition of the national importance of the fishery.
[85] Against the background of these submissions, Mr McClelland submitted that each of the six findings of the Court particularised in the notice of appeal constituted errors:
(a)the reference to the “ambiguous status” of salmonids was said to be an error because the s 7(h) direction to protect the habitat of trout and salmon is unambiguous;
(b)the Court’s conclusion that returning the river “to a more natural state” is a problematic concept was said to be incorrect given the statutory and other requirements for protection of trout, which emphasises the improvement in the condition of waterways;
(c)the observation that the presence of trout debases the ecosystems of indigenous flora and fauna was described as involving an unjustified focus on “indigenous” given nothing in the wording of s 7(h) suggests a primary concern with indigenous ecosystems to the exclusion of introduced species, and trout are an important feature of the Lindis;
(d)the conclusion that “ecosystems containing indigenous biodiversity are relatively more important” (when it comes to safeguarding the life- supporting capacity of water) was said to be incorrect, there being no “sliding scale of importance” giving primacy to the protection of indigenous species in s 5 RMA. Mr McClelland furthermore pointed
to evidence before the Court that trout were not present in the upper reaches of the Lindis but were rather in the mainstem. This means there is little interaction between the species. In short, the Court incorrectly treated the different species as involving directly competing policy considerations;
(e)counsel focused on the Court’s “introduced pest” reference, which has been dealt with at [75]–[79] above; and
(f)cumulative impact of errors — Mr McClelland submitted that the cumulative impact of the Court’s identified findings ((a)–(e) above) led the Court to take a view of the facts which could not reasonably be entertained, because it was so inconsistent with express provisions of the RMA.
[86] For the ORC, Mr Logan recognised the phrase “natural and physical resources” (which are to be sustainably managed in terms of the RMA) is a comprehensive expression and includes both indigenous and introduced fauna. However, Mr Logan observed that other provisions in the RMA give sharper focus to the relationship between trout and other natural and physical resources.
[87]Mr Logan noted in particular the following:
(a)section 6(c) RMA directs that in achieving the purpose of the Act, decision-makers shall recognise and provide for, as a matter of national importance, the protection of significant habitats of indigenous fauna;
(b)section 7(h) directs decision-makers, in achieving the purpose of the RMA, to have particular regard to the protection of the habitat of trout and salmon;
(c)the language used in ss 6 and 7, however, varies in strength. Section 6, dealing with “matters of national importance” requires that the decision-maker “recognise and provide for the following matters of
national importance” including (through s 6(c)): “the protection of areas of significant indigenous vegetation and significant habitats of indigenous fauna”;
(d)the requirements in relation to the “other matters” covered by s 7 (including s 7(h) — “the protection of the habitat of trout and salmon”) are more evaluative and abstract, with the decision-maker required to have “particular regard” to them. For his submissions on the relationship between ss 6 and 7, Mr Logan drew particularly on the observations of the majority in the Supreme Court decision in Environmental Defence Society Inc v The New Zealand King Salmon Co Ltd (King Salmon).66
[88] Accordingly, in Mr Logan’s submission, through the regime in ss 6 and 7 RMA, priority is given to indigenous fish species, although decision-makers are required to have a particular regard to the protection of the habitat of trout. In his submission, this priority is supported by the subsequent provision in s 30(1)(ga) RMA whereby the functions of regional councils include “the establishment, implementation, and review of objectives, policies, and methods for maintaining indigenous biological diversity”. That provision has no parallel for introduced species.
[89] Mr Logan submitted that the Environment Court had been correct in not bringing into account the provisions of the Conservation Act, which constitute an irrelevant consideration for a plan-maker under the RMA.
[90] For the LCG, Mr Page supported Mr Logan’s submissions in relation to the Question 1, including as to the irrelevance of the Conservation Act to the issue before the Environment Court.
[91] Mr Page also rejected Fish & Game’s characterisation of s 5(2)(a) of the Act as having the purpose “to sustain and safeguard all life in the environment in its present and future states”. Section 5(2)(a) explicitly provides that the purpose of “sustaining
66 Environmental Defence Society Inc v The New Zealand King Salmon Co Ltd [2014] NZSC 38, [2014] 1 NZLR 593 at [25]–[26] [King Salmon].
the potential of natural and physical resources” is “to meet the reasonably foreseeable needs of future generations”. It does not require that all species be sustained for all time for all purposes. Mr Page gave the (pest) eradication of possums as an objective which would conflict with Fish & Game’s view of the purposes under s 5(2).
[92] Mr Page submitted that, within its expertise, the Environment Court was entitled to describe the habitat as altered by trout as less deserving of the description of “natural”. The Court had before it (and accepted) evidence that trout had extirpated some indigenous fish in the mainstem of the river.67
[93] In conclusion, Mr Page submitted that Fish & Game’s objection to the Court’s reference to trout as an “introduced pest” involved undue sensitivity, particularly as the Court neither suggested that trout are a pest in all rivers and in all circumstances, nor incorporated the definition of “pest” under the Biosecurity Act.
[94] For the Director-General, Ms Williams submitted that the description of “pest” as used by the Court did not impact on the Court’s evaluation of the appropriate flow and allocation. The Court was faced with a choice of the scenarios before it in adopting the regime for the river. There were a number of matters to consider, including the need to protect trout habitat. The Court was not making a choice between the habitats of trout and those of indigenous species. That said, in Ms Williams’ submission, the flow and allocation regime adopted by the Court in fact protects trout habitat in the Lindis catchment. It improves their current habitat whilst also protecting indigenous species and the wider ecosystem.
[95] In relation to Fish & Game’s assertion that the Environment Court’s decision involved findings contrary to the express provisions of the Conservation Act, Ms Williams joined with counsel for the other respondents in emphasising the Court did not consider or make any findings under the Conservation Act precisely because it was not required to do so.
67 Judgment, above n 1, at [212].
[96] In reply, Mr McClelland for Fish & Game took issue with the respondents’ submissions as to the irrelevance of the Conservation Act in the context of the Environment Court’s consideration of the protection of indigenous and introduced species, respectively. Mr McClelland referred to statutory functions shared by the Director-General for protection and enhancement of trout habitat under the Conservation Act. He referred to the Environment Court’s identification of plans made under the Conservation Act, noting that under s 66(2)(c)(i) RMA the Councils “shall have regard to management plans and strategies prepared under other Acts”. He referred also to the Lindis catchment as incorporating three conservation areas. Finally, he suggested that Fish & Game’s legal submissions on its statutory mandate (under the Conservation Act and fisheries regulations) were ignored by the Environment Court.
Discussion
[97] The appellant has not demonstrated any error of law under the heading asserted in Question 1. It will be answered “No”.
[98] There was no error in relation to the Environment Court’s failure to have regard to the provisions of the Conservation Act in the context of the functions that were being exercised under the RMA.
[99] In the Court’s identification of the regime under ss 6 and 7 RMA the Court correctly applied King Salmon. The duty upon the decision-maker under s 7 RMA — to have particular regard to the protection of the habitat of trout and salmon — is a weaker direction than that under s 6 — to recognise and provide for the protection of significant habitats of indigenous fauna (as a matter of national importance). There is under this regime a priority given to indigenous fish species, which is reflected in the express provisions relating to the maintenance of indigenous biological diversity under s 30(1)(ga) RMA.
[100] The Court correctly identified but rejected the role which Fish & Game sought to place upon s 7(h). Section 7(h) does not require the decision-maker to ensure the protection of the habitat of trout and salmon.
[101] The significance of s 7(h) was succinctly summarised by the Environment Court thus:68
Two other provisions in section 7 are particularly relevant.
•The protection of the habitat of trout and salmon69
Fish and Game placed considerable emphasis on section 7(h) RMA. We accept that 'protection' is a strong word, equivalent to 'safeguard'. However, as we noted in Part 4.3, the section 7 matters are to be had 'particular regard to', not ensured.
…
[102] The factual matters then considered and determined by the Court were all matters which had been the subject of evidence during the hearing and involved the very expertise with which the Environment Court is established to engage. For the reasons identified by counsel for the respondents, factual findings such as the degradation of indigenous ecosystems (at [212] of the Judgment) were available if not inevitable on the evidence. None of the individual or cumulative findings that are the subject of Question 1 are conclusions which no reasonable decision-maker (correctly exercising their discretion under the RMA) could have reached. Question 1 will be answered “No”.
Question 2 – did the Court wrongly interpret Objective B1 of the NPSFM in respect of trout?
[103] As defined in s 45(1) RMA, the purpose of national policy statements is to state objectives and policies for matters of national significance that are relevant to achieving the purpose of the RMA.
[104] As correctly identified by the Environment Court, s 67(3)(a) RMA requires that a regional plan must give effect to any national policy statement (such as the NPSFM). The NPSFM-2014 contained four particular provisions (Objectives B1 to B3 and Objective B5) that were relevant to setting a MF for the river.70
68 Judgment, above n 1.
69 Resource Management Act, s 7(h).
70 Judgment, above n 1, at [177].
[105] Objective B5 was designed to enable communities to provide for their economic wellbeing in sustainably managing freshwater quantity, but “within limits”.71 The Environment Court summarised the limits as set out in Objectives B1 to B3:72
…
• Objective B1 — which seeks that the life-supporting capacity, ecosystem processes and indigenous species (including their associated ecosystems) of freshwater be safeguarded; and
• Objective B2 — which is to avoid any over-allocation and phase out existing over-allocation;
• Objective B3 — to improve and maximise efficient allocation and use of water.
…
[106]The full text of objective B1 reads:
To safeguard the life-supporting capacity, ecosystem processes and indigenous species including their associated ecosystems of fresh water, in sustainably managing the taking, using, damming or diverting of fresh water.
[107] Fish & Game asserts that the Environment Court misinterpreted and therefore misapplied Objective B1 through finding it prioritises the safeguarding of the life- supporting capacity of ecosystem processes as they relate to indigenous species (as against trout).
[108]Mr McClelland referred to five particular passages in the Judgment:
(a)at [178] — “Objective B1 is to safeguard (amongst other things) indigenous species. … it definitely gives primacy to safeguarding the ecosystems of indigenous species.”
(b)at [185] — “Introduced species like trout and other salmonids are not directly safeguarded.”
71 At [177].
72 At [177].
(c)at [473] — “the scheme of the Act as particularized in the NPSFM shows that ecosystems containing indigenous biodiversity are relatively more important.”
(d)at [478] — “the Lindis mainstem has trout present, so the importance of the ecosystem decreases under Objective B1 of the NPSFM (subject always to water quality standards) at least in relation to natural flows.”
(e)at [478] — “the conditions of maximising trout size, population, and food production … have less importance under the NPSFM.”
[109] Counsel for the respondents uniformly supported the Environment Court’s conclusions in relation to Objective B1. Mr Logan cited para [179] of the Judgment where the Court, in recognising the grammar of Objective B1 is difficult, summarised what was to be safeguarded under Objective B1:73
[179] However, the grammar of Objective B1 is difficult to understand especially since there is no direct implementing policy. It appears to require the safeguarding of:
(a) the life-supporting capacity of freshwater;
(b) the ecosystem processes of freshwater; and
(c) indigenous species and their associated ecosystems of (in) freshwater.
…
[110] Mr Logan noted this formulation by the Court of the requirements of Objective B1 was effectively reproduced in the written submissions filed for Fish & Game, where it was identified as “the correct reading of Objective B1”. Mr Logan observed that the Environment Court’s observation that trout and other salmonids “are not directly safeguarded under the NPSFM” correctly reflects the content of Objective B1. The protection of trout is indirect under Objective B1 in the sense that it is an aspect (not directly identified) of the first two objectives (that is, the safeguarding of the life- supporting capacity of freshwater and of the ecosystem processes of freshwater).
73 Judgment, above n 1.
[111] Ms Williams, for the Director-General, noted the Environment Court’s similar recognition in the Judgment, observing that “Objective B1 is to safeguard (amongst other things) indigenous species.”74
[112] Ms Williams submitted the Court did not treat Objective B1 as applicable to indigenous species only. She referred to other passages in the Judgment which clearly indicated that the Court, in applying Objective B1, had regard to the life-supporting capacity of the river’s ecosystems, including for trout. The Court included in the Judgment at Chapter 6.2, under the heading “Maintaining the life-supporting capacity of the Lindis River’s ecosystems”, extensive discussion on the effects of PC5A water quantity on trout habitat, including for trout. In Chapter 6.5 of the Judgment under the heading “Protecting the presence of trout” the effects on trout were directly addressed. And ultimately, as observed by Ms Williams, the Court found that both the 550 MF and 900 MF options would not merely avoid adverse effects on the presence of trout but would create an ecosystem likely to produce more and larger trout.75
[113] Ms Williams ended on this issue by making her submissions in relation to the mootness of the question given the priority that is spelt out for indigenous species through Policies 9 and 10 of NPSFM-2020.
Discussion
[114] It is clear throughout the Judgment that the Environment Court did not wrongly interpret (or apply) Objective B1 of NPSFM-2014.
[115] There were essentially two aspects to Fish & Game’s complaint in relation to the Court’s approach to Objective B1. First, there is the Court’s statement that introduced species such as trout are, under Objective B1 “not directly safeguarded”. But that is a correct statement in relation to Objective B1. Secondly, there are the Court’s related observations as to the relative importance of indigenous and introduced species, such as that introduced species have “less importance under the NPSFM”. To
74 At [178] (emphasis added).
75 At [207].
the extent that the provisions of Objective B1 informed that conclusion, it is a plainly available view of Objective B1, open to the specialist Court to reach.
[116] The impugned interpretations of Objective B1 were not erroneous. Question 2 will be answered “No”.
Question 5 – did the Environment Court err by taking the wrong approach to and/or adopting the wrong legal test for s 7(h) RMA?
[117] Fish & Game assert that the Environment Court applied the wrong legal test in relation to its interpretation and application of s 7(h) RMA.
[118] Fish & Game further contends in its Notice of Appeal that the Court’s approach to s 7(h), when considering the effects on trout and their habitat at paras [161]–[212], [350]–[390] and [505]–[513] of the Judgment, was flawed, to the extent that the Court failed to have particular regard to the protection of the habitat of trout and salmon.
[119] As there was an appreciable overlap between this ground of appeal and the more general ground covered by Question 1, I have already (from [85] above) referred to s 7(h) RMA. For convenience I will set it out again:
7 Other matters
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 have particular regard to—
…
(h) the protection of the habitat of trout and salmon:
…
[120] Fish & Game, before the Environment Court, and again on this appeal, places particular emphasis on the term “protection” used in s 7(h).76
[121] The Environment Court’s approach to s 7(h) and its application may be summarised as follows:
76 At [173].
(a)The decision-maker, applying s 7(h) RMA, is to have “particular regard to” the protection of the habitat of trout and salmon. That is not a duty to ensure such protection.77 This is in contrast to the duty under s 6(c) RMA to “recognise and provide for” the protection of significant habitats of indigenous fauna.78
(b)Generally it is sufficient to assess future states of the environment against the present (the status quo).79
Trout habitat values (recognised in the ORP:W) have been maintained in the Lindis even though in dry years under the status quo the Lindis has dried out in places.80 The presence of trout in the river is already safeguarded under the status quo and is in a better situation under the 550 MF option.81 That said, a naturalised flow (not achievable for trout) would be even more beneficial to trout than either the 550 MF or 900 MF options.82 (The Court reviewed the evidence comparing habitat reductions under different flow regimes from both naturalised flow and the status quo).83
(c)In relation to protecting the presence of trout, the Court found on the evidence:
[371] In the lower river, the Races 900/2255 scenario at MALF provides marginally more habitat (an average of 6% more than the Galleries 550/1639 scenario at MALF). At flows above MALF the Galleries 550/1639 flows will be higher and will provide better invertebrate habitat and food production. The generally higher flows of Galleries 550/1639 will tend to counter the effects of a lower MALF. In the upper reach the Galleries 550/1639 scenario will provide about 50% more habitat at MALF than the Races 900/2255 scenario. Overall the galleries scenario will probably support higher trout populations than the races scenario.
77 At [173].
78 At [167].
79 At [169].
80 At [57].
81 At [477].
82 At [207].
83 At [288]–[289] and [295]–[298].
(d)In relation to “effects on trout spawning and juvenile habitat” the Court preferred the evidence of Dr Jowett (called for the ORC and LCG) to that of Dr Gabrielsson (called by Fish & Game), concluding:84
In any event, we find there are likely to be no adverse effects on habitat when comparing these options with the status quo.
(e)In the assessment under pt 2 RMA the protection of habitats and ecosystems under the RMA at present was recognised as a matter for case-by-case assessment.85
[122] In relation to “the protection of the habitat of trout”, the Court found on the evidence:
[509] In this case both the 550 MF and 900 MF options protect the habitat of trout better than the Status Quo. The 550 MF option represented by the Galleries 550/1639 scenario meets the objective better than the Races 900/2255 scenario. Dr Cowie explained “This is because it will lead to higher flows in the 18 kms of the river below the major irrigation off takes down to just upstream of the Ardgour [FR] … for about 92% of the time during the irrigation season”. These higher flows represent up to 18 kms of better habitat for trout in the Lindis River. We accept that a Galleries 900/2255 scenario would give similar or better result in that 18 kms stretch of the river but, as we have found, that scenario is fanciful on economic grounds.
(footnotes omitted)
[123] In relation to the ability of trout to move through “the Crossing reach” during periods of low flow, the Court concluded on the evidence:86
…We do not think much turns on this issue, because it is clear that trout survive and thrive in the Lindis River even under the status quo (when there is no connectivity in dry years) …
…
[513] We have found on the balance of probabilities that the Lindis River is not important for the recruitment of trout to the Clutha River/Mata-Au and Lake Dunstan fishery. Consequently the habitat of trout is sufficiently protected under option MF 550, given the 18 kms of improved habitat above the Ardgour FR.
84 At [376].
85 At [508].
86 At [511]–[513].
[124] In his submissions for Fish & Game, Mr McClelland first focused on the meaning of “protection” as used in s 7.87 He noted that the Environment Court stated that it was treating “protecting” as synonymous with “safeguarding”,88 but suggested that the mere citation of such a test was then subjected to “a downgraded form of protection due to the …[Court’s] bias against trout as a ‘pest’”. Mr McClelland submitted that “protection should actually mean protection”.
[125] Mr McClelland next turned to the directive in s 7(h) RMA to “have particular regard to” the protection of the habitat of trout and salmon. He cited the judgment of Cooke P in New Zealand Fishing Industry Assn Inc v Minister of Agriculture and Fisheries.89 There, in issue was a statutory requirement to “have regard” to submissions. McGechan J had previously identified (as later adopted by Cooke P) that the decision-maker was required to give genuine attention and thought to the submissions but could in the end wholly or partly reject them.90
[126] Counsel for the respondents uniformly submitted that the Environment Court correctly identified the nature of its obligation under s 7(h), and then as required gave genuine consideration to the protection of trout habitat.
[127] I accept the respondents’ submissions to that effect. It is clear that the Court gave genuine attention to such protection. It is not without significance that the Court’s review of the evidence led to the factual conclusion that both the 550 MF and 900 MF options protected the habitat of trout better than the status quo (albeit that the 900 MF gallery scenario advanced by Fish & Game was not economically viable).
[128] The submission for Fish & Game came close to suggesting that the Environment Court, because of a bias against trout as a “pest”, effectively abandoned the approach to s 7(h) which it had clearly enunciated. A proper reading of the
87 Citing Environmental Defence Society v Mangonui County Council [1989] 3 NZLR 257 (CA) at [262]; Royal Forest and Bird Protection Society of New Zealand Inc v New Plymouth District Council [2015] NZEnvC 219, (2015) 19 ELRNZ 122 at [63].
88 Judgment, above n 1, at [475].
89 New Zealand Fishing Industry Assn Inc v Minister of Agriculture and Fisheries [1988] 1 NZLR 544 (CA).
90 New Zealand Fishing Industry Assn Inc, above n 89, at 551; applied in Marlborough Ridge Limited v Marlborough District Council (1997) 3 ELRNZ 483 (EnvC).
Judgment does not indicate the Court at any point departed from its (correct) formulation of the s 7(h) approach. Question 5 will be answered “No”.
Question 3 — did the Environment Court apply the wrong legal test when determining that the current degraded river (status quo) was the relevant environmental baseline to assess the effects on trout?
[129] In relation to this question, Fish & Game in its notice of appeal identified the natural flow of the Lindis as the baseline which should have been adopted for assessment of effects on indigenous species. In her submissions for Fish & Game on this question, Ms Tancock submitted the cumulative effect of the Environment Court’s approach was that it did not properly consider the effect of PC5A on trout habitat because any scenario was an improvement on the status quo.
[130] Central to Fish & Game’s answer to this third question is the application of the legal test enunciated by this Court in Ngāti Rangi Trust v Manawatu-Whanganui Regional Council (“Ngāti Rangi”).91
[131] Ngāti Rangi concerned the Raetihi Hydro-Electric Power Scheme. Resource consents for water takes had previously been issued. It was in effect a re-consenting application. The Environment Court had rejected the Regional Council’s submission that the environmental effects had to be considered by assessing the environment as if the consented activities did not exist.92
[132] The High Court allowed Ngāti Rangi’s appeal, quashed the Environment Court decision and directed the Environment Court to reconsider it.
[133] Collins J followed the judgment of the Environment Court in Port Gore Marine Farms v Marlborough District Council, a case involving an application for resource
91 Ngāti Rangi Trust v Manawatu-Whanganui Regional Council [2016] NZHC 2948 [Ngāti Rangi].
92 Ngāti Rangi, above n 91, at [26], referring to New Zealand Energy Ltd v Manawatu-Whanganui Regional Council [2016] NZEnvC 59.
consents for three marine farms.93 There the Environment Court had stated:94
… we need to bear in mind that we must imagine the environment, for the purposes of section 104(1)(a) of the Act, as if the three marine farms are not actually in it.
[134] Collins J observed that to not follow Port Gore when assessing the environmental impacts of a proposed consent would be to lock in hydro-electricity water takes and flow rates for so long as the controlled activity status is retained, thereby preventing adverse effects being avoided or mitigated.95
[135] The Judge was reinforced in that conclusion by commentary by the learned authors of Environmental and Resource Management Law.96 The authors note a principle has emerged in which it should not be assumed that existing consents with finite terms will be renewed or renewed on the same conditions. The text states:97
Accordingly, the existing environment cannot include, in the context of a renewal application, the effects caused by the activities for which the renewal consents are sought, unless it would be fanciful or unrealistic to assess the existing environment as though those structures authorised by the consent being renewed did not exist.
[136] Collins J accordingly distinguished the judgment of this Court in Rodney District Council v Eyres Eco-Park Ltd, in which Allan J had held that existing use rights could be construed as part of the environment for the purposes of s 104(1)(a) RMA.98 Collins J observed that water take permits are not permanent and do not carry existing use right protections.99
[137] In Ngāti Rangi, Collins J also distinguished a line of authorities on the existing environment that has evolved from the Court of Appeal’s decision in Queenstown- Lakes District Council v Hawthorn Estate Ltd (Hawthorn).100 There it was determined
93 Port Gore Marine Farms v Marlborough District Council [2012] NZEnvC 72.
94 At [140].
95 Ngāti Rangi, above n 91, at [63].
96 Derek Nolan (ed) Environmental and Resource Management Law (5th ed, LexisNexis, Wellington, 2015).
97 At 610.
98 Rodney District Council v Eyres Eco-Park Ltd [2007] NZRMA 1 (HC).
99 Ngāti Rangi, above n 91, at [62].
100 Ngāti Rangi, above n 91, at [66], citing Queenstown-Lakes District Council v Hawthorn Estate Ltd [2006] NZRMA 424.
that the existing environment (in the context of a consent application) may include activities over which a decision-maker has no control, such as unimplemented resource consents that are likely to be granted. The Environment Court, in its earlier decision in Sampson v Waikato Regional Council, had described the rationale for the differing approach to the existing environment in relation to, first, land use consents which include existing land use consents as part of the existing environment (as subsequently restated in Hawthorn) and, secondly, water permits:101
[33] We are also conscious of the distinction between land use consents, which are granted in perpetuity, and water consents, which are granted for a defined term and not necessarily renewed. In relation to the latter, the existing environment must be determined as the environment that might exist if the existing activity, to which the water consents relate, were discontinued.
[138] The judgment in Ngāti Rangi was concerned with and directly addressed to a reconsenting application in relation to water take permits. It provides no direct authority in relation to the plan change process. Counsel for Fish & Game did not refer to any case in which Ngāti Rangi (or the principle there identified) has been applied in a plan change setting.
[139] In the hearing of this case in the Environment Court, the baseline proposed by Fish & Game was referred to as “the naturalised flow option”. Ms Baker-Galloway, then presenting the submissions for Fish & Game, submitted that the Environment Court was required by Ngāti Rangi to focus only on the naturalised flow. Her submissions were introduced by the Environment Court thus:102
[120] The Naturalised Flow option is still relevant but not for the reasons Ms Baker-Galloway gave. She constructed an argument based on a resource consent case Ngāti Rangi Trust v Manawatu-Whanganui Regional Council (“Ngāti Rangi”) for why the court should look at the “existing environment”
– by which she meant, in effect, the natural flow on this plan change. We do not consider it is necessary to resolve that issue because, as we have seen, the ORP:W requires us to consider the natural flow and other characteristics of the river – that is the Naturalised Flow option – anyway. Of course the regional plan also requires us to examine the Status Quo option too.
[140] In the Environment Court, Mr Logan for ORC submitted that the naturalised flow was irrelevant given the plan change context. The Environment Court dealt with
101 Sampson v Waikato Regional Council EnvC Auckland A178/2002, 2 September 2002 at [33] (emphasis added).
102 Judgment, above n 1, at [120] (footnotes omitted).
that submission by finding that the naturalised flow option was not the only, and not the most important, option to be considered, but was still relevant.103
[141] Returning to Ms Baker-Galloway’s submissions, the Environment Court in this case found it unnecessary to determine whether Ngāti Rangi might apply in the absence of any policy because Policy 5.4.8 ORP:W established that the correct approach involved a number of factors. In particular, the Court recorded:104
[201] Ms Baker-Galloway submitted that in deciding the appropriate minimum flow and primary allocation we should compare the effects of water takes under the various scenarios against the naturalised flows of the river. She said that on a plan change (or new plan) the test is of the effect of activities on the environment as if there was no abstraction from the river. She referred to two resource consent decisions. The authoritative decision is Ngāti Rangi Trust v Manawatu-Whanganui Regional Council (“Ngāti Rangi”') where the High Court endorsed Port Gore Marine Farms Ltd v Marlborough District Council (“Port Gore”) in which the Environment Court stated:
... we need to bear in mind that we must imagine the environment ... as if the three marine farms are not actually in it.
[202] We do not find it necessary to determine whether Ngāti Rangi might apply in the absence of any policy because in relation to “natural character”, Policy 5.4.8 ORP:W expressly directs us to have particular regard to a list of features of rivers (including lakes). It states:
5.4.8 To have particular regard to the following features of lakes and rivers and their margins, when considering adverse effects on their natural character:
(a)The topography including the setting and bed form of the lake or river;
(b)The natural flow characteristics of the river;
(c)The natural water level of the lake and its fluctuation;
(d)The natural water colour and clarity in the lake or river;
(e)The ecology of the lake or river and its margins; and
(f)The extent of use or development within the catchment including the extent to which that use and development has influenced matters (a) to (e) above.
Ms Baker-Galloway emphasised the recurrence of the word “natural” in factors (b), (c) and (d), but did not mention the phrase “use and development”
103 At [193].
104 Footnotes omitted.
which applies to all the preceding factors nor did she mention that the state of use and development is expressly to be considered.
[203] The correct approach under this policy is that, when considering adverse effects on rivers under the ORP:W, there are two (opposing) sets of factors:
(1)the natural flow and the naturalness of other physical characteristics; and
(2)the extent of use and development
— with a further set in the middle:
(3)the current ecosystem(s) of the river.
So under the plan we must have particular regard to naturalised flows, conditions and ecosystems and to the extent to which use and development has influenced them. That entails we should consider both the NF option and the Status Quo option.
[142] As the Environment Court indicated it would do, it then went on to consider both the naturalised flow and the status quo options.105
[143] When the Court came to give its judgment on the water permits (interim) decision, it applied Ngāti Rangi in deciding what constituted the “environment” under s 104(1)(a) RMA.106 Fish & Game does not suggest that the Court incorrectly applied Ngāti Rangi in that decision.
[144] For Fish & Game, Ms Tancock submitted that Ngāti Rangi provides the correct “existing environment” test for future activities in respect of expiring water permits and therefore for PC5A. She submitted that to apply a different baseline to a plan change, as against a water permit, is unwarranted. She submitted that the Environment Court erred in finding that Ngāti Rangi was “not relevant”.107
Discussion
[145] Central to Fish & Game’s submissions on Question 3 was the proposition that the Environment Court had erred in its finding that the decision in Ngāti Rangi was “not relevant”. As discussed (above at [131]–[137]) Ngāti Rangi is (for this Court)
105 At [204]–[207].
106 Water Permits Decision, above n 15, at [56].
107 Judgment, above n 1, at [120], [193] and [201]–[202].
persuasive authority that the baseline to be applied in relation to consent renewals is the environment prior to the existing consents. In other words, a rejection of the status quo as a baseline. But the passages in this Judgment referred to by counsel for Fish & Game (at [120]–[193] and [201]) do not involve the findings suggested for Fish & Game that “Ngāti Rangi was not relevant”. The Environment Court, when it came to the permits (interim) decision, directly applied Ngāti Rangi as its starting point under s 104(1)(a) of the RMA.108
[146] The Environment Court in the appealed Judgment did not treat the Ngāti Rangi approach to baseline as irrelevant. The Court engaged with the Ngāti Rangi “naturalised flow” scenario as one of its comparisons but did so in conjunction with other options, including the status quo, which it found to be the more useful comparator.
[147] In the evaluative exercise conducted by the Court, it took into account the naturalised flow. As submitted by counsel for the respondents, the weight to be attached to the naturalised flow and the degree to which the competing options departed from it were matters for the Court in carrying out its expert assessment.
[148] The answer to Question 3, as raised by Fish & Game on this appeal, is therefore “No” — because the Court did not evaluate the proposals by reference to a single scenario (status quo) and in fact included the naturalised flow in its evaluative exercise.
Question 4 — does “safeguarding the life supporting capacity of … water … and ecosystems” in s 5 of the RMA rightly include the sustainable management of trout and their habitat?
[149] Question 4 draws on provisions contained in the first section (s 5) of pt 2 (Purpose and Principles) of the Act.
108 Water Permits Decision, above n 15, at [56].
[150]Section 5 RMA is set out above at [81].
[151] In s 2 RMA “natural and physical resources” is defined to include “land, water, air, soil, minerals, and energy, all forms of plants and animals (whether native to New Zealand or introduced), and all structures”.
[152]For the Director-General, Ms Williams focused on the structure of pt 2 (ss 5–
8) of the RMA. She noted that ss 6, 7 and 8 are principles of varying importance intended to give guidance as to the way in which the purpose (under s 5) is to be achieved.109 Ms Williams noted that s 6 sets out matters of national importance that all decision-makers “shall recognise and provide for” when exercising functions and powers under the RMA to achieve its sustainable management purpose. This includes (under s 6(c)) “the protection of areas of significant indigenous vegetation and significant habitats of indigenous fauna”.
[153] Ms Williams then noted the requirement under s 7 for decision-makers to “have particular regard to” identified matters, including “the protection of the habitat of trout and salmon” (under s 7(h)) and “the intrinsic values of ecosystems” (s 7(d)).
[154] Section 8 requires decision-makers to “take into account the principles of the Treaty of Waitangi”.
[155] Ms Williams then referred to matters identified by the Supreme Court in King Salmon:110
(a)section 6 gives a stronger direction to decision-makers, with the specified matters of national importance (including significant habitats for indigenous fauna) having to be recognised and provided for;111
109 Reith v Ashburton District Council [1994] NZRMA 241 (PT); Unison Networks Ltd v Hastings District Council [2011] NZRMA 394 (HC); Waikanae Christian Holiday Park v Kapiti Coast District Council HC Wellington CIV-2003-485-1764, 27 October 2004; and Freda Pene Reweti Whanau Trust v Auckland Regional Council HC Auckland CIV-2005-404-356, 9 December 2005.
110 King Salmon, above n 66.
111 At [26].
(b)section 5 was not intended to be an “operative provision” in the sense that particular planning documents are not made under it. The hierarchy of planning documents in the RMA was intended to:112
… flesh out the principles in s 5 and the remainder of pt 2 in a manner that is increasingly detailed both as to content and location. It is these documents that provide the basis for decision-making, even though pt 2 remains relevant. It does not follow from the statutory scheme that because pt 2 is open-textured, all or some of the planning documents that sit under it must be interpreted as being open-textured.
[156] In the context of a plan change appeal, the Supreme Court held that an authority was acting in accordance with pt 2 by giving effect to a National Policy Statement, and (absent “invalidity, incomplete coverage or uncertainty” in statutory planning instruments), it will usually be unnecessary to resort to pt 2.113
[157] In Ms Williams’ submission, the Environment Court in this case appropriately considered pt 2 due to inconsistencies in the planning framework,114 and the Court properly concluded its assessment under pt 2 gave it no reason to depart from its preliminary conclusions under s 32 RMA and the intermediary instruments.115
[158] Ms Williams then turned to the provisions of s 5(2)(b) in particular. She submitted that the safeguarding purpose in the provision does not mean that safeguarding trout habitat outweighs all else (including other plants and animals in an ecosystem). Put another way, the safeguarding of trout habitat is one factor to be weighed amongst others (identified in pt 2) in considering whether an option promotes the RMA’s purpose.116
[159] Ms Williams cited the Environment Court’s discussion of s 5(2)(b) in Becmead Investments Ltd v Christchurch City Council, where it was stated:117
It is of interest to observe from the foregoing that reference is made at various points both to soil and to soils, whereas s 5(2)(b) simply speaks of the life-
112 At [151].
113 At [85], [88] and [90].
114 Judgment, above 1, at [504].
115 At [517].
116 Citing Ngati Ruahine v Bay of Plenty Regional Council [2012] NZHC 2407, (2012) 17 ELRNZ 68 at [55]–[57], [64]–[65], [69]; and Waikanae Christian Holiday Park, above n 109.
117 Becmead Investments Ltd v Christchurch City Council (1996) 2 ELRNZ 368 (EnvC) at 386.
supporting capacity of soil, without grading that capacity in relation to different types of soils. We agree with counsel for Becmead that para (b) of the subsection is concerned with safeguarding the life-supporting capacity of air, water, soil and ecosystems in a general sense - that is, the provision alludes to the need to safeguard the capacity of the four specified fundamentals of earthly reality to support life in its multifarious forms and interrelationships. A body in authority is, in effect, enjoined to promote sustainable management on a basis that will safeguard the capacity of the named aspects to support life in all its variety. In practical terms it is necessary to make a careful value judgement on whether the spirit and intent of the paragraph will be met and given due weight via a particular planning approach …
[160] Ms Williams observed that the Environment Court in this case appropriately treated the term “safeguard” in s 5 as akin to the word “protection.118
[161] Ms Williams then came back to the findings the Environment Court made in order to provide protection for the trout habitat in the Lindis with the 550 MF adopted by the Court, which it found safeguarded and in fact improved the life-supporting capacity of the Lindis for trout.119
[162] The submissions of Mr Logan, for the ORC, paralleled those of Ms Williams. In his submission, Question 4 as identified by Fish & Game involves an over- simplification of s 5(2) RMA.
[163] Mr Logan submitted that the concept of sustainable management as expressed in s 5(2) is more complex than suggested by counsel for Fish & Game. He argued it is wrong to hive off part of it as if it were the touchstone of plan-making under the RMA.
[164] Mr Logan submitted that, by casting s 5(2) as the operative decision-making provision in the Act, Fish & Game had misunderstood the role of s 5. Mr Logan argued the Supreme Court’s decision in King Salmon established that s 5 is not the operative decision-making provision, being general in nature and standing alone, with an often uncertain and difficult application in particular contexts.120
118 Judgment, above n 1, at [173].
119 At [207] and [509].
120 King Salmon, above n 66, at [105]–[151].
[165] Mr Logan referred again to the relationship of the sections within pt 2, as discussed in relation to previous questions, and again by reference to King Salmon. Sections 6 and 7 elaborate as to the RMA’s purpose, with s 6 giving the stronger direction. Matters in s 7 are more abstract and evaluative than those in s 6.121 Mr Logan submitted pt 2 requires the purpose of the Act in relation to trout to be given effect to by having particular regard to the protection of the habitat. Section 7 explains how the Act’s purpose is to be achieved for trout. If trout were simply subsumed in s 5(2)(b), s 7 would serve no purpose.
[166] Mr Logan noted the recognition in King Salmon that the concept of sustainable management is further teased out in a cascade of policy statements and plans made under the RMA, “increasingly detailed both as to content and location”.122
[167] As had Ms Williams, Mr Logan referred to the Environment Court’s evaluation of the evidence and its assessment as to the safeguarding of trout under Galleries 550/1,639. He submitted that the appeal point falls away in the face of the Court’s analysis and its findings.
[168] For LCG, Mr Page adopted the submissions for the Director-General and the ORC.
[169] Ms Baker-Galloway presented the submissions for Fish & Game on Question 4 (and also Questions 6 and 8). Her central submission was that the Environment Court had failed through the Judgment to promote the sustainable management of the trout fishery and habitat by failing (in terms of s 5(2)(b)) to safeguard the life- supporting capacity of air, water, soil and ecosystems as they affect trout. She linked her submission to the Court’s “flawed interpretation of NPSFM-2014”. The interpretation of the relevant parts of NPSFM-2014 was the subject of Fish & Game’s second question, on which I have found (above at [103]–[116]) the Environment Court did not err. Accordingly, the remaining issue in relation to the interpretation of s 5(2)(b) RMA turns on the Environment Court’s approach to an application of that provision having regard to its role in pt 2 of the RMA.
121 At [26].
122 At [151].
[170] Ms Baker-Galloway identified the passages in the Judgment in which the Environment Court’s interpretation of s 5(2)(b) is set out:
(a)at [164]–[169] — the Court addressed the question “What is safeguarding the life-supporting capacity of ecosystems?” The Court recognised “life-supporting capacity” operates as a continuum.123 The Court continued that life-supporting capacity involves both qualitative and quantitative considerations.124 This means that the volume of water requires consideration in any given matrix.125 Furthermore, s 5(2)(b) needs to be read in the context of the RMA as a whole, particularly with s 6(c) and the description of the functions of local authorities in relation to indigenous biodiversity.126 Finally, in this section, the Court recognised that ecosystems may be nested or overlap, resulting in difficulties in translating protection of indigenous biodiversity into policies (and, under other instruments, rules);127
(b)at [178] — the Court recognised the objective to safeguard (amongst other things) indigenous species in Objective B1 NPSFM is important, as it goes some way towards resolving ambiguities present in ss 5(2)(b) and 7 of the Act. It was then (as discussed above at [114]–[116]) that the Court identified that Objective B1 NPSFM “gives primacy to safeguarding the ecosystems of indigenous species”; and
(c)at [473] — the Court summarised the earlier findings in the Judgment, identifying that it had held:
…safeguarding the life-supporting capacity of water is linked to the life-supporting capacity of ecosystems, and … the scheme of the Act as particularized in the NPSFM shows that ecosystems containing indigenous biodiversity are relatively more important.
123 Judgment, above n 1, at [164], adopting the evidence of Dr Hayes.
124 At [166].
125 At [166].
126 At [167], citing in relation to indigenous biodiversity Director-General of Conservation v Invercargill City Council [2018] NZEnvC 84 at [45]–[47].
127 At [168].
[171] Ms Baker-Galloway identified these conclusions as flawed because on Fish & Game’s submission (which I have rejected) the Environment Court had adopted an underlying interpretation of Objective 1 of NPSFM-2014 that was flawed.
[172] By reference to Environment Court and High Court decisions, Ms Baker- Galloway submitted it is established that there is a deliberate openness about the language in s 5, which does not lend itself to strict rules and principles of statutory interpretation.128
[173] Ms Baker-Galloway submitted that the Court had adopted an inappropriately narrow interpretation of s 5(2)(b) and had applied an inappropriate sliding scale of protection. In doing so, she submitted, the Court had failed to recognise the “necessarily general and flexible” blanket of protection which the Supreme Court recognised in King Salmon as an aspect of the sustainable purpose of the RMA.129
Discussion
[174] There was no error in the way the Environment Court approached s 5 of the RMA and the related provisions of pt 2 of the RMA. The Environment Court’s approach was consistent with the Supreme Court’s conclusions in King Salmon, recognising s 5 as more general in nature and with the directions in s 6 (the stronger) and s 7 (the more abstract and evaluative) then being worked through by the Court.
[175] The strong focus which Fish & Game would, through Question 4, have the Court apply to s 5 would involve a neglect of the statutory directions given and evaluation required under ss 6 and 7. On Fish & Game’s approach to s 5, the provisions of s 7 would in particular situations (such as that presented by this case) come close to having no purpose to serve.
[176] Fish & Game has not established there was an error of law in the Environment Court’s interpretation and application of s 5 of the RMA. Question 4 will nevertheless
128 Infinity Investment Group Holdings v Queenstown Lakes District Council [2010] NZEnvC 234, [2011] NZRMA 310 at [13], New Zealand Rail Ltd v Marlborough District Council [1994] NZRMA 70 (HC) at 19.
129 King Salmon, above n 66, at [24(a)].
be answered “Yes”, not because the Court made an error of law but because (as the Environment Court itself recognised) the sustainable management of trout in their habitat come within the safeguarding purpose of s 5.
Question 6 — was the conclusion that the lower minimum flow better protected habitat requirements for invertebrates and indigenous fish than a higher minimum flow of 900 l/s a conclusion that could not reasonably have been come to on the evidence?
[177] This question relates to the conclusion reached by the Environment Court in relation to protecting the life-supporting capacity of the river. In Chapter 6 of the Judgment, the Court asked itself, “How effective are the options in achieving the ORP:W’s objectives?” Under the sub-heading, “Maintaining the life-supporting capacity of the Lindis River’s ecosystems”, the Court reviewed the evidence in light of the relevant objectives of the ORP:W. It concluded its discussion in the passage to which this question is directed:130
[298] In terms of protecting the life-supporting capacity of the river we find that:
•the 550 MF option is slightly more effective compared with the status quo option and 900 MF option in respect of the river as ecosystem for invertebrates and indigenous fish, but not for trout;
•the 550 MF option is slightly less effective than the 900 MF option and 15% less effective than the naturalised flow option as an ecosystem for trout.
[178] For Fish & Game, Ms Baker-Galloway submitted that these conclusions were inconsistent with the Court’s subsequent finding (when discussing the protection of indigenous values), which reads:131
As between Galleries 550/1364 and Races 900/2255 the latter provides significantly better fish passage and habitat for native fish than the Galleries 550/1364 at low flows in the lower reach of the river. In respect of eel habitat those conclusions are largely (and expressly) affirmed by Dr Jowett’s study of habitat retention.
[179] Ms Baker-Galloway submitted that there was no evidence to support a finding that a MF of 550 l/s was more protective of life-supporting capacity for invertebrates
130 Judgment, above n 1.
131 At [394].
and native fish. To the contrary, she stated that the consensus of experts was the higher MF of 900 l/s would result in better ecological outcomes both generally and for invertebrates and native fish generally.132 Ms Baker-Galloway noted that the joint witness statement of the experts rated various parameters on a scale of 1–10, and the scenarios with 900 l/s MF rated either the same or better than 550 l/s MF for parameters relating to native fish and invertebrates. On the topic of habitat retention, she observed that the relevant experts also agreed that the higher MF provided for a higher percentage of habitat retention for native fish and invertebrates.
[180] Ms Baker-Galloway concluded that the Court’s finding that the 550 l/s was better than the 900 l/s for native fish and invertebrates seemed to relate not to those species’ habitat needs but somehow to the Court’s determination that trout are pests degrading indigenous ecosystems, and that there is a “conflict between protecting indigenous ecosystems (and their flora and fauna) and the artificial ecosystem which is the habitat of trout”.133
[181] Ms Baker-Galloway referred to the Court’s further conclusion in relation to safeguarding the life-supporting capacity of the ecosystem that:134
While the experts agreed that more water in the river will lead to better values, the 550 MF and 900 MF scenarios cannot practicably achieve Policy 3.1.9 (ecosystems and indigenous biodiversity) of 100% pure natural functioning of the main stem because of the presence of trout.
[182] Ms Baker-Galloway submitted there was no evidence to support the Court’s conclusion that by minimising the improvement of habitat for trout there would be some sort of corresponding benefit for native fish and invertebrate communities of the Lindis catchment.
[183] Ms Williams observed that the Director-General had supported the Galleries 550/1,639 scenario (ultimately adopted by the Environment Court) because it would allow more water to stay in the Lindis mainstem for longer and consequently would
132 Referring to the Joint Witness Statement Mainstem.
133 Judgment, above n 1, at [491].
134 At [492].
provide greater ecological protection for all freshwater species (whether indigenous or introduced) present in the river.
[184] Ms Williams submitted the Court’s conclusion in the Judgment at [298] (set out above at [177] as to the 550 MF option being slightly more effective was a reasonably available conclusion on the evidence. Importantly, the Court had available the evidence of Dr Jowett (which was in turn consistent with the hydrology evidence accepted in the joint witness statement). The Environment Court referred to this aspect of Dr Jowett’s evidence:135
[293]Dr Jowett summarised those results as follows:
•the Races 900/2255 scenario (PC5A (DV)) gives more habitat in the lower 6 kms of the river;
•upstream 6 to 14 kms from the confluence the difference between the scenarios will “not be as great”; and
•for 14 to 24 kms upstream from the confluence the 550 MF option – as specified Galleries 550/1639 will provide more habitat than the PC5A (DV) scenario Races 900/2255.
[294] An important part of the Fish and Game case is that the advantages of scenario Galleries 550/1639 from 14–24 kilometres upstream could also be achieved by scenario Galleries 900/1200. This scenario was not considered by Dr Jowett and there are difficulties with it as we discuss elsewhere.
[185] As the Court rejected Galleries 900/1,200 as impracticable, the comparators adopted by the Court were Races 900/1,200, Galleries 550/1,639 , the status quo and naturalised flow.
[186] Ms Williams identified the evaluation exercise in which the Court was engaged and noted the Court analysed the in-stream habitat necessarily by different stretches of the river with varying habitat outcomes.
[187] Ms Williams further submitted the proceeding before the Environment Court was not one in which the evaluation and resulting determination would flow from narrow issues that weigh the interests of indigenous fish against trout (or other introduced species). In Ms Williams’ submission, what the Court was required to and
135 Judgment, above n 1 (footnotes omitted).
did take into account was a range of factors, including (with reference to the relevant chapter in the Judgment):
(a)protecting the natural character of the river (6.3);
(b)the intrinsic values of ecosystems (4.5);
(c)effects of climate change (5.6);
(d)the amenity values of the lower Lindis (6.4);
(e)the habitat needs of indigenous freshwater species (6.6);
(f)the protection of trout habitat (6.5);
(g)the needs of primary industry (6.7); and
(h)the efficacy of water use (6.7).
[188] Ms Williams submitted that, when the Environment Court’s evaluation is considered in its entirety, the Court’s conclusion on the evidence on particular aspects (such as in-stream habitat at [298]) and across the range of relevant considerations cannot be described as a decision which a reasonable decision-maker could not have reached.
[189] For the LCG, Mr Page presented parallel submissions to those of Ms Williams. But he first identified three particular matters that “riddle [Question 6] with imprecision”:
(a)the question does not identify a particular habitat. As a consequence it effectively ignores the different hydrological outcomes at different locations and in different flow states (the magnitude and points of water take being different);
(b)the question ignores the dynamic nature of river flows and does not refer to flow probability at all. Mr Page noted that the Galleries 550/1,639 scenario was controlled by a lower MF than the Races 900/2,255 scenario, with the consequence that the frequency of such low flows at Ardgour FR was predicted to be lower. Hence the Court’s conclusion (at [509] of the Judgment) (accepting the evidence of Dr Cowie), that Galleries 550/1,639 left more water in more of the river for more of the time; and
(c)the question does not specify the flow scenario accompanying the higher MF of 900 l/s referred to, being silent as to whether the reference was to the ORC’s decision version (Races 900/2,255) or Fish & Game’s Galleries 900/1,200. As the hydrology experts modelled only Races 900/2,255, Mr Page’s remaining submissions focused on that flow scenario.
[190] As had Ms Williams, Mr Page went on to refer to the Court’s findings based on the evidence of Dr Jowett.136 Mr Page submitted the Environment Court demonstrated a sound grasp of the hydrology evidence. Dr Henderson’s flow hydrographs had indicated (across the entire modelled distance, including the 18 km above the Ardgour FR) that flows were generally higher in the Galleries 550/1,639 than the Races 900/2,255 scenario except in very dry periods.137
[191] The Environment Court accepted Dr Henderson’s hydrographs and figures (“despite two minor confusions”).138
[192] Dr Henderson’s evidence about flow exceedance and duration was preferred by the hydrology experts,139 and the Court accepted the hydrology experts’ evidence that Galleries 550/1,639 had higher flows more frequently for more of the time than Races 900/2,255.140
136 As summarised in the Judgment, above n 1, at [293]–[294].
137 Referring to Dr Henderson’s Brief of Evidence and Figures 12–15 (in the attachment to the Judgment).
138 Judgment, above n 1, at [239].
139 At [239], referring to the joint witness statement.
140 At [238].
[193] Mr Page noted that the Court’s conclusions stemmed from its acceptance of Dr Henderson’s evidence and the joint evidence of the hydrology experts. He submitted that no error of law can arise from those factual determinations.
[194] Mr Page referred also to the Court’s conclusions on ecology. The Joint Witness Statement (hydrology) had been provided to the ecology conference so that the ecology experts could assess the habitat impacts from the modelled hydrology. The relevant hydrology evidence is then reflected in the Court’s finding as to indigenous freshwater values, being:141
[394] The Galleries 550/1364 and Races 900/2255 scenarios both fare poorly at low flows in relation to passage and habitat compared with the Naturalised Flow scenario. Both perform considerably better than the Status Quo as shown in Table 6.1. As between Galleries 550/1364 and Races 900/2255 the latter provides significantly better fish passage and habitat for native fish than the Galleries 550/1364 at low flows in the lower reach of the river. In respect of eel habitat those conclusions are largely (and expressly) affirmed by Dr Jowett’s study of habitat retention.
[195] Mr Page observed that the Court’s reasons for its findings (at [298] of the Judgment — above at [177]) as to the 550 MF option being slightly more effective are clearly anchored to Dr Jowett’s evidence as to more habitat being delivered by the Galleries 550/1,639 than the Races 900/2,255 scenario in the 14–24 km reach. Such evidence was also consistent with the hydrology evidence accepted in the joint witness statement.
[196] In conclusion Mr Page submitted that the Environment Court’s understanding of the evidence was accurate and the factual conclusions made all available to it.
Discussion
[197] The Court had available to it and assessed a substantial body of expert evidence, much (but not all) of it the subject of agreement between experts. The significant exception in this area related to the hydrology evidence of Dr Henderson whose evidence the Court accepted (subject to the “two minor confusions”).142
141 Judgment, above n 1 (footnotes omitted).
142 At [239].
[198] The Court’s impugned conclusions at [298] of the Judgment were all based on evidence and necessarily involved an evaluation across different habitats leading to an overall assessment of effectiveness. The conclusions reached by the Court, on the expert evidence, were conclusions that could reasonably have been reached on that evidence.
[199] On the issues addressed by the Court at [298] of the Judgment, I detect in the Judgment no intrusion into the Court’s assessment of the protection of the life- supporting capacity of the river of the sorts of considerations (such as that “trout are pests”) that Ms Baker-Galloway suggested had intruded.
[200]Question 6 will be answered “No”.
Question 8 — did the Environment Court apply the wrong legal test when interpreting the terms “limit” and “over-allocation” from the NPSFM to the Regional Plan and Lindis River?
[201] This question is explained in Fish & Game’s notice of appeal by asserting that the Environment Court erred in finding that the grandfathered primary allocation set in the Regional Plan for the Lindis is a “limit” in the context of the NPSFM definition, and that accordingly the Lindis is not “over-allocated” in the context of the NPSFM. In particular, Fish & Game asserts that the Court incorrectly found that Policy 6.4.2 of the Regional Plan sets the NPSFM “limit” at 3,248 l/s based on historical allocation, and then incorrectly finds that there is therefore no “over-allocation” in the context of the NPSFM.
[202] Within the NPSFM, Objective B2 is: “To avoid any further over-allocation of fresh water and phase out existing over-allocation.”
[203] Fish & Game’s Question 8 relates particularly to the Environment Court’s discussion of “over-allocation” as it appears in Objective B2 (and of “limit” as defined), both referred to at [180] of the Judgment being:
“Over allocation” is the situation where the resource:
(a)has been allocated to users beyond a limit; or
(b)is being used to a point where a freshwater objective is no longer being met.
This applies to both water quantity and quality.
“Limit” is the maximum amount of resource use available which allows a freshwater objective to be met.
[204] In addition to these definitions, the expression “freshwater objective” (as used in the definition of “limit”) is defined in NPSFM 2014 to describe an intended environmental outcome in a freshwater management unit.
[205] It was common ground between counsel on this appeal that the ORP:W had not been through any plan change process to give effect to the requirement to set a “freshwater objective” for any “freshwater management unit” “that included the Lindis River, nor any “limit” for the Lindis catchment. The 2014 definition of “limit” was therefore inapplicable.
[206] Ms Baker-Galloway observed that the Court (at [181] of the Judgment) reasoned that the “limit” in the NPSFM brought into play Policy 6.4.2 of the Regional Plan (the then-current primary allocation being referred to by the Court as 3,248 l/s).143
[207] Policy 6.4.2 of the ORP:W sets what is termed the “primary allocation” as (relevantly to this case) the sum of existing consented takes. Hence the reference in Fish & Game’s notice of appeal to “the grandfathered primary allocation”, meaning the status quo.
[208] Ms Baker-Galloway submitted that the Court erred in concluding (at [181]) that there is no “over-allocation” and consequently incorrectly removed the requirement for the decision on PC5A to give effect (or have regard) to Objective B2 of NPSFM.
[209] The complete answer to this ground of appeal lies, as identified by both Mr Logan and Mr Page, in the fact that the Court avoided any further over-allocation when it reduced the (notional) limit (from 3,777 l/s to 1,640 l/s). In short, as correctly
143 The 3,248 l/s figure appearing to be in error — the current primary allocation is consistently referred to elsewhere in the Judgment as 3,777 l/s: see [3], [233] and [483].
described by Mr Page, the Court’s approach effectively adopted the position most favourable to Fish & Game’s case and adverse to that of LCG. The Court treated the status quo situation on the river as over-allocated. The Galleries proposal had the effect of phasing out such over-allocation.
[210] In these circumstances Question 8 may be answered “Yes” but the error in the approach to interpretation was not a material error.
Mootness
[211] Had the appeal not been so fully argued as to the substantive questions and the answers not so clear in my assessment, I would have been favourably inclined to rule in the respondents’ favour on the issue of mootness. In the circumstances, I refrain from that course, recognising that a particular grievance for Fish & Game lay in the Environment Court’s description of trout as a “pest”, an aspect of the judgment on which, in the course of answering the questions raised, it has been appropriate to provide this Court’s guidance as to the limited impact of that description.
Outcome
[212] The questions identified by Fish & Game (above at [69]) are answered as follows:
(a)Question 1: No;
(b)Question 2: No;
(c)Question 3: No;
(d)Question 4: Yes;
(e)Question 5: No;
(f)Question 6: No;
(g)Question 7: No; and
(h)Question 8: Yes.
Costs
[213] The appeal has been unsuccessful. In the usual course, costs and disbursements would follow the event. If the parties are unable to agree on costs and disbursements they will be determined on the basis of submissions filed — counsel for the respondent to file and serve (four page limit) within 10 working days and counsel for the appellant to respond within five working days (six page limit). In the event no memoranda on costs is received within 10 working days, there will (without further Judgment issuing) be no order as to costs.
Osborne J
Solicitors:
Anderson Lloyd, Queenstown
Ross Dowling Marquet Griffin, Dunedin Gallaway Cook Allan, Dunedin
Crown Law, Wellington
P Anderson, Forest and Bird Protection Society of New Zealand Inc
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