Sustainable Otakiri Incorporated v Whakatāne District Council
[2025] NZSC 158
•12 November 2025
| IN THE SUPREME COURT OF NEW ZEALAND I TE KŌTI MANA NUI O AOTEAROA |
| SC 1/2023 [2025] NZSC 158 |
| BETWEEN | SUSTAINABLE OTAKIRI INCORPORATED |
| AND | WHAKATĀNE DISTRICT COUNCIL |
| SC 2/2023 | ||
| BETWEEN | TE RŪNANGA O NGĀTI AWA | |
| AND | BAY OF PLENTY REGIONAL COUNCIL | |
| Hearing: | 22–24 November 2023 |
Court: | Winkelmann CJ, Glazebrook, Ellen France, Williams and Kós JJ |
Counsel: | D M Salmon KC and D A C Bullock for Appellant in SC 1/2023 |
Judgment: | 12 November 2025 |
JUDGMENT OF THE COURT
ASustainable Otakiri Inc’s appeal is dismissed.
BTe Rūnanga o Ngāti Awa’s appeal is dismissed.
CCosts are reserved.
____________________________________________________________________
REASONS
| Ellen France, Williams and Kós JJ | [1] |
| Winkelmann CJ and Glazebrook J | [215] |
ELLEN FRANCE, WILLIAMS AND KÓS JJ
(Given by Williams J)
Table of Contents
Para No
Introduction
The proposal in more detail
Water right
Land use consents
The Court of Appeal’s decision in brief
Issues
The scope of “effects” issue: is plastic bottle disposal a relevant effect?
The Courts below
Environment Court
High Court
Court of Appeal
Submissions
The RMA framework
Section 104(1)(a)
“Effects” on the “environment” defined
“Sustainable management” defined
Application information
Our view
Too remote?
Substitution
“Integrated management” and the WMA
Other considerationsConclusion
The scope of appeal issue: was plastics disposal properly before the Environment Court and so amenable to further appeal?
Submissions
Our view
The activity status issue: is the proposal a discretionary “rural processing activity” or non-complying “industrial activity”?
The Courts below
Submissions
Analysis
Te mauri o te wai effects issue: did the Environment Court properly consider TRONA’s tikanga evidence?
The tikanga evidence in the Environment Court
The Courts below
Submissions
Analysis
The pt 2 issue: should the Environment Court have applied pt 2 of the RMA directly?
Result
Introduction
These appeals concern a proposed expansion to an existing spring water extraction and bottling operation run by Ōtākiri Springs Ltd (OSL) on a rural property near Whakatāne. Located at the property is an existing (consented) extraction and bottling plant, as well as a kiwifruit orchard which occupies most of the site. The bottling plant currently bottles around 1.9 million litres of mineral water per annum. All of the water is drawn from a bore on the property. Under the proposed expansion, the existing plant would be retained while the kiwifruit orchard would be replaced with a second, much larger plant. The new plant would increase capacity from 1.9 million litres of water bottled per annum to 580 million litres—a 300-fold increase.
Resource consents for the proposal were originally sought by Creswell NZ Ltd (Creswell). Creswell’s ultimate parent company is Nongfu Spring Co Ltd (Nongfu), a large water bottling and distribution business in the People’s Republic of China. In 2016, Creswell entered into a conditional sale and purchase agreement with OSL, intending to bottle and sell water from the site, primarily for export. That agreement was cancelled before the hearing in this Court. Creswell has transferred its rights and interests in resource consents for the proposal to OSL.
The proposal is opposed by Sustainable Ōtākiri Inc (SOI) and Te Rūnanga o Ngāti Awa (TRONA). SOI represents local residents. TRONA represents the local iwi. Both brought appeals, unsuccessfully, in the Environment Court, High Court and Court of Appeal. They were granted leave to appeal to this Court.[1]
[1]Sustainable Otakiri Inc v Whakatāne District Council [2023] NZSC 35 (Glazebrook and O’Regan JJ) [SC leave judgment].
In this Court, SOI’s appeal focuses on two arguments: first, SOI says the Courts below wrongly excluded from consideration the environmental effects of plastic bottle disposal by end users of OSL’s product; and second, SOI says the Courts below miscategorised the proposed new plant as a discretionary activity under the Whakatāne District Plan (WDP). TRONA’s appeal to this Court focuses on the effects of the project on the mauri (life and well-being in tikanga terms) of the water within its rohe (territory), and on Ngāti Awa’s kaitiakitanga or cultural obligation to care for that water. For their part, and as we come to, OSL, the Bay of Plenty Regional Council and the Whakatāne District Council support the decision of the Court of Appeal and the reasons for that decision.
The proposal in more detail
In 2016, Creswell agreed to purchase OSL’s land and associated business subject to obtaining the necessary resource consents for a proposed expansion. As we have noted, Creswell has since cancelled this agreement and OSL is now the successor to the expansion proposal. It is appropriate, therefore, to proceed on the basis of the evidence given for the original proposal.
The proposed expansion is to take place on a 6.27 ha property in Ōtākiri, about 20 km west of Whakatāne. The original water right on the site was granted in 1979. It was for orchard irrigation purposes only and drew from a 230 m bore on the property. In 1991, a land use consent to operate a commercial water bottling plant was obtained. The 1979 water right was expanded to include bottling to a volume of 1,200 m3 (1.2 million litres) per day alongside allowances for irrigation at 158 m3 per day and frost protection at 1,580 m3 per day. A second bore was drilled onsite in 2017 to 228 m and the pre-230 m bore is now intended to be kept as a backup.
The current maximum take is 2,938 m3 (2.938 million litres) per day and 327,000 m3 (327 million litres) per annum for all uses including the orchard.
Under the proposal, the maximum daily take will increase to 5,000 m3 and the maximum annual take will be 1.1 million m3 with the former orchard-related allocations being repurposed to water bottling.
The two bores on the property draw from the Ōtākiri aquifer in the Awaiti Canal groundwater catchment located within the Tarawera management area. It is common ground that the Awaiti Canal groundwater resource parameters are as follows:
Groundwater Flow
24,093,504 m3 pa
Available Allocation
8,432,726 m3 pa (35 per cent of total flow)
Allocated Groundwater
6,710,180 m3 pa (79.6 per cent of allocation)
Allocation Remaining
1,722,546 m3 pa
Without deducting the existing consented take of 327,000 m3 (this entitlement would be wholly replaced by the new consent), the proposed annual take is 13 per cent of the total available allocation of 8.4 million m3 and 64 per cent of the remaining allocation of 1.7 million m3.
To bottle that additional water, present production will increase from 8,000 bottles per hour (with the plant operating Monday–Friday, 7.00 am – 4.30 pm and “sometimes” on Saturdays) to 154,000 bottles per hour (operating 24 hours a day, seven days a week). The capacity of the existing plant will be increased to 10,000 bottles per hour and a much larger production plant will be built alongside the existing one. The new plant will be housed inside a new 12.9 m high building occupying 16,800 m2, which is a little over a quarter of the site area. On the southern side of the new building will be an associated unloading canopy and container loading area, with much of the remainder of the site taken up with ancillary structures, container storage and roading.
The new building will house two high-speed bottling lines each capable of producing 72,000 bottles per hour. According to the evidence, small polyethylene terephthalate (PET) test tube‑like cylinders known as “pre-forms” are trucked to the plant to be turned into plastic bottles there. Built into each bottling line is a machine that moulds each pre-form into a finished bottle by blowing air under pressure into it. Each bottle is then filled, sealed, packed and stored awaiting removal to market.
To establish the proposed operation, a new water right was sought from the Regional Council to draw the increased volume of water from the Ōtākiri aquifer,[2] alongside an amended consent from the District Council to build and operate the expanded bottling plant.[3] Both applications fell to be considered under s 104 of the Resource Management Act 1991 (RMA). In broad terms, this section requires the relevant consent authorities to take into account matters including pt 2 of the RMA, the effects of the proposed activity on the environment and any relevant provisions of a policy statement or plan. We will come back to the relevant provisions in more detail below.
Water right
[2]See Resource Management Act 1991 [RMA], s 14.
[3]See s 9(3)(a). See also below at [15]–[16] as to the applicability of s 127.
The TRONA appeal focuses on the water right. TRONA argues that the consent permits “too much water to be sold too far away”. TRONA witnesses said that the proposed volume of water to be taken and its proposed offshore destination materially injured te mauri o te wai (the mauri of the water) and undermined the iwi’s ability to exercise its obligation of kaitiakitanga in respect of it. Granting consent would therefore breach Ngāti Awa tikanga in contravention of the provisions of pt 2 of the RMA—in particular, s 6(e) which protects Ngāti Awa’s relationship with its ancestral waters, s 7(a) which provides for Ngāti Awa’s kaitiakitanga and s 8 which relates to Ngāti Awa’s rights according to the principles of the Treaty of Waitangi.[4]
[4]These provisions require, in achieving the purpose of the RMA, for all persons exercising functions and powers under the RMA (in relation to managing the use, development and protection of natural and physical resources) to “recognise and provide for … the relationship of Māori and their culture and traditions with their ancestral lands, water, sites, waahi tapu, and other taonga” (s 6(e)); to “have particular regard to … kaitiakitanga” (s 7(a)); and to “take into account the principles of the Treaty of Waitangi (Te Tiriti o Waitangi)” (s 8).
Importantly, the expert evidence was that the biophysical effects of the proposed take on the aquifer would be negligible. That evidence was not contested by TRONA. Further, as we shall see, Creswell also called a kaumātua from Ngāti Awa to give evidence in relation to the tikanga effects of the take, challenging TRONA’s position.
Land use consents
Creswell had also to obtain approval from the District Council to build the new water bottling facility. However, it did not seek a land use consent in accordance with the usual procedure for resource consent applications,[5] as it considered that the overall proposal could be treated as a variation of the 1991 consent for the existing smaller bottling plant. This meant the proposal could be dealt with under s 127 which provides a separate procedure for varying the conditions of an existing consent. The potential advantage of this for OSL was that a variation is deemed to be a discretionary activity.[6] This avoided the possibility that the new plant would be classified as a non-complying “industrial activity” under the operative WDP. The Planning Commissioners who considered the matter at first instance, the Environment Court and the High Court agreed that s 127 set the activity status,[7] but the Court of Appeal disagreed and held that a fresh land use consent was required.[8]
[5]Section 9 (as to land use consents) and s 88 (as to the requirements for applications).
[6]Section 127(3)(a).
[7]Te Rūnanga o Ngāti Awa v Bay of Plenty Regional Council [2019] NZEnvC 196, (2019) 21 ELRNZ 539 (Judge Kirkpatrick, Commissioners Buchanan and Kernohan) [EnvC judgment] at [252] per Judge Kirkpatrick and Commissioner Buchanan; and Te Rūnanga o Ngāti Awa v Bay of Plenty Regional Council [2020] NZHC 3388, [2021] NZRMA 76 (Gault J) [HC judgment] at [261].
[8]Te Rūnanga o Ngāti Awa v Bay of Plenty Regional Council [2022] NZCA 598, [2023] NZRMA 280 (Cooper, Goddard and Dobson JJ) [CA judgment] at [187] and [191]–[192].
The applicability of s 127 need not detain us here as neither OSL nor the District Council challenges the Court of Appeal’s finding that in that respect. This is undoubtedly because the Court of Appeal found the error was immaterial.[9] The Court found the proposal was in fact a “rural processing activity” which was also a discretionary activity under the WDP.[10]
[9]At [192].
[10]At [156].
The SOI appeal addresses the land use consents. The argument is that OSL’s proposal is a non-complying “industrial activity” under the WDP and so must also pass through one or the other of the two narrow gateways in s 104D. That is, OSL must establish that the effects of the proposal on the environment will be minor or that the proposal will not be contrary to the objectives and policies of the WDP.[11] SOI argues that, as the proposal was not assessed against those gateways as a non-complying industrial activity, it must be sent back for reconsideration.
[11]Section 104D(1)(a) and (b)(i). See also Whakatāne District Plan [WDP]. Any references to planning documents in these reasons refer to the versions provided to us by the parties to the appeal.
As noted above, SOI also advanced argument based on the environmental effects of plastic bottle production and disposal. These effects may (subject to specific evidence being obtained) be relevant to both the water right and land use consents. The essential argument is that the Courts below wrongly excluded these effects from consideration as a matter of jurisdiction (as the Environment Court held),[12] as a question of remoteness (as the High Court held)[13] or as a question of remoteness and appropriateness (as the Court of Appeal held).[14] TRONA supported SOI’s position on this issue.
The Court of Appeal’s decision in brief
[12]EnvC judgment, above n 7, at [66] per Judge Kirkpatrick and Commissioner Buchanan.
[13]HC judgment, above n 7, at [149] and [156]–[157].
[14]CA judgment, above n 8, at [56]–[61].
Although we address the Court of Appeal’s judgment in more detail under each issue, a brief summary of the overall conclusions of that Court is provided here for context before setting out the issues in the appeal before us. The appeals to that Court were by way of questions of law.[15] Five questions were accepted, only four of which remain relevant in this Court.[16]
[15]See s 299 of the RMA, which limits appeals from the Environment Court to the High Court to questions of law only; and see s 308 as to appeals to the Court of Appeal.
[16]The fifth question related to s 127 which, as noted above at [16], has fallen away: see CA judgment, above n 8, at [3(e)]; Te Rūnanga o Ngāti Awa v Bay of Plenty Regional Council [2021] NZCA 354 (Clifford and Courtney JJ) [CA leave judgment] at [4]–[5]; and see Te Rūnanga o Ngāti Awa v Bay of Plenty Regional Council [2021] NZCA 452 (Clifford and Courtney JJ) [CA amended leave judgment].
The first question related to environmental effects of end use (that is, export of the water and eventual disposal of the plastic bottles containing it). The Court of Appeal found that these end uses are merely consequential to the primary activity for which consent is sought, and unlike the primary activity, able to be done lawfully.[17] Further, the Court found that there were important “conceptual difficulties” with bringing such effects within the ambit of the RMA.[18] We discuss these in detail below.[19]
[17]CA judgment, above n 8, at [55]–[56].
[18]At [56]–[61].
[19]Below at [34].
The second question raised a procedural issue. Plastics disposal was not the subject of appeal to the Environment Court, nor did the parties call evidence in relation to it in that Court. Rather, plastics disposal was raised by a member of the Court during the hearing. The question in the Court of Appeal was whether the Environment Court should therefore have called for evidence on plastics disposal before determining the effects issue. The Court of Appeal considered that its answer to the first question effectively compelled a negative answer to this question.[20] But in any case, as plastic waste was not a ground of any appeal in the Environment Court, it could not be the subject of inquiry by that Court (except in the clearest of cases) and there was no obligation to call for further evidence.[21]
[20]CA judgment, above n 8, at [68].
[21]At [75]–[78].
The third question raised two distinct but related issues. The first was whether the Environment Court ought to have had direct recourse to the Māori‑related provisions in pt 2 of the RMA when addressing the cultural effects raised by TRONA. As to this issue, the Court of Appeal found that direct recourse to those provisions was not required as the applicable policy statements and plans adequately addressed their requirements.[22] The second issue concerned whether the Environment Court’s reliance on evidence of the biophysical sustainability of the Ōtākiri aquifer in answer to cultural effects evidence was a permissible response to those pt 2 provisions. This raised other end use issues about te mauri o te wai in addition to plastic waste. The argument advanced was that by focusing only on the biophysical state of the source aquifer, the Environment Court ignored the distinct cultural effect of removing the water to another place (the end use).[23] The Court of Appeal rejected that argument, finding that the biophysical and cultural evidence were reconcilable in this case and that the Environment Court did not therefore ignore the cultural effects of the water’s end use.[24]
[22]At [109]–[110].
[23]At [98].
[24]At [109]–[111].
The fourth question related to a matter of interpretation of the WDP—that is, whether the proposed plant is a discretionary “rural processing activity” or a non‑complying “industrial activity” which includes “manufacturing”. The Court of Appeal found that the proposal was a discretionary rural processing activity in accordance with the relevant provisions of the WDP.[25] The Environment Court had therefore applied the correct planning status to the activity.
Issues
[25]At [156].
The issues arising in the appeal before us largely track those outlined above. We did, however, grant leave to appeal to TRONA on an additional question not addressed in the Court of Appeal—which we refer to as te mauri o te wai effects issue.[26] The resulting five issues are as follows:
(a)the scope of “effects” issue: whether potential effects on the environment of end user disposal of plastic bottles (primarily offshore) is a relevant “effect” under the RMA;
(b)the scope of appeal issue: whether the plastics disposal issue was properly before the Environment Court and amenable to further appeal;
(c)the activity status issue: whether under the WDP, OSL’s proposal is a discretionary “rural processing activity” or a non-complying “industrial activity”;
(d)te mauri o te wai effects issue: whether the Environment Court failed properly to consider the tikanga evidence called by TRONA as to the end use aspect of its opposition to the proposal; and
(e)the pt 2 issue: whether Māori-focused objectives, policies and rules in the applicable policy statements and plans were relevantly deficient such that the Environment Court should have considered pt 2 of the RMA directly.
The scope of “effects” issue: is plastic bottle disposal a relevant effect?
[26]SC leave judgment, above n 1, at [9].
This issue concerns whether the environmental effects of plastic waste disposal are relevant to resource consent decisions relating to the production stage. This turns on the scope of the word “effects” in s 104(1)(a) of the RMA and how this broad language can be applied in a practical way to resource consent decision-making.
By way of context, s 104 is the core RMA provision controlling resource consent decisions. It requires consent authorities (and, on appeal, the Environment Court) to “have regard to” factors including:
(a)actual or potential effects on the environment of allowing the proposed activity;[27]
(b)relevant provisions of any environmental standard, regulation, policy statement or plan prepared;[28] and
(c)any other matter considered relevant and reasonably necessary to determine the application.[29]
[27]RMA, s 104(1)(a).
[28]Section 104(1)(b).
[29]Section 104(1)(c).
This direction is subject to the overarching requirements of pt 2,[30] which require RMA functions and powers to be exercised so as to “achiev[e]” the RMA’s purpose of “promot[ing] the sustainable management of natural and physical resources”.[31] Part 2 also requires statutory decision-makers to “recognise and provide for” various “matters of national importance”,[32] “have particular regard” to a list of “[o]ther matters”,[33] and “take into account” the principles of the Treaty of Waitangi.[34]
[30]Section 104(1).
[31]Sections 5–8.
[32]Section 6.
[33]Section 7.
[34]Section 8.
Three further matters are relevant in this case.[35] First, s 88 and sch 4 of the RMA set out the information required to accompany applications for resource consents. In doing so, these provisions assist in inferring the intended scope of the “effects” to which regard must be had under s 104(1)(a). The second relevant matter is the Waste Minimisation Act 2008 (WMA). The WMA contains its own distinct systems of planning and control in relation to waste generally. It overlaps with the RMA in the control of waste, giving rise to questions about whether one of the regimes should predominate in decision-making, including resource consents. Third, analogies might be drawn with this Court’s decision in West Coast ENT Inc v Buller Coal Ltd (Buller Coal),[36] and that of the United Kingdom Supreme Court in R (on the application of Finch) v Surrey County Council (Finch).[37] Both cases concerned the relevance of the climate effects of scope 3 (indirect) emissions in the planning context; we will address these decisions in more detail in our analysis.[38] For present purposes, it is sufficient to note that in Buller Coal, the majority expressed a tentative view in obiter that scope 3 emissions’ effects may be outside the scope of s 104(1)(a) “effects”.[39] In Finch, however, the majority held that scope 3 emissions’ effects were relevant to consideration of an application to extract oil and therefore had to be addressed in the applicant’s Environmental Impact Assessment (EIA).[40]
[35]See s 104(1)(c).
[36]West Coast ENT Inc v Buller Coal Ltd [2013] NZSC 87, [2014] 1 NZLR 32 [Buller Coal].
[37]R (on the application of Finch) v Surrey County Council [2024] UKSC 20, [2024] 4 All ER 717 [Finch].
[38]See, in particular, below at [64] and following.
[39]Buller Coal, above n 36, at [115]–[127] per McGrath, William Young and Glazebrook JJ but see at [94] per Elias CJ dissenting.
[40]Finch, above n 37, at [7], [101] and following and [174] per Lord Leggatt, Lord Kitchin and Lady Rose SCJJ.
The question here is one of statutory interpretation in light of facts. In what follows we discuss how the Courts below and parties approached the question. We then discuss the RMA framework in more detail before setting out our view.
The Courts below
Environment Court
A majority in the Environment Court comprising Judge Kirkpatrick (as he then was) and Commissioner Buchanan found that s 104(1)(a) did not require the Court to take into account potential environmental effects of plastic bottle disposal by end consumers.[41] While “effect” and “environment” are very broadly defined, the majority considered an effect on the environment cannot be “anything at all”.[42] A “causal relationship” was required between the activity for which consent is sought and its alleged effect.[43] That relationship was both legal (sufficiently proximate in law) and factual (able to meet an orthodox “but for” test).[44] The majority found there was insufficient proximity in law, because used bottles may be disposed of lawfully and if disposal occurs outside the region, it is not a regional matter which can be controlled under a regional plan.[45] Further, “but for” causation was not satisfied: prohibiting plastic bottle use in this case could not materially reduce the wider problem of plastic waste disposal.[46] The majority concluded that the control of plastic waste could only be achieved through bespoke national legislation.[47]
[41]EnvC judgment, above n 7, at [66].
[42]At [60].
[43]At [60].
[44]At [60]–[61].
[45]At [64]; and RMA, s 30.
[46]EnvC judgment, above n 7, at [64].
[47]At [65].
Commissioner Kernohan dissented. He calculated that the proposal would produce 1.35 billion plastic bottles per annum for 25 years, giving rise to concerns in relation to sustainable management.[48] He concluded:
[336] I accept that trillions of plastic bottles are manufactured world-wide on a daily basis. However, the purpose of the RMA is to promote the sustainable management of natural and physical resources. Allowing the creation of products that will clearly add to current pollution in the environment without any commitment to avoid, remedy or mitigate the pollution is against the purpose of the RMA.
High Court
[48]At [327] and [331].
On appeal, Gault J considered the Environment Court majority “went too far” in holding that the environmental effect of plastic bottle disposal is, “in the abstract”, too remote to be relevant under s 104.[49] Remoteness was instead best approached as “an issue of fact and degree”, as the wider problem of plastic waste disposal was connected to bottled water production at scale and so should not be excluded without inquiry.[50] That said, the Judge concluded that the effects here were “too indirect or remote”, in fact and degree terms, to warrant further consideration in Creswell’s application.[51] In this the Judge relied on the analysis of the majority in Buller Coal.
Court of Appeal
[49]HC judgment, above n 7, at [142].
[50]At [142] and [153].
[51]At [156].
Cooper J (as he then was), writing for the Court, noted no party suggested plastic waste is irrelevant in principle under s 104.[52] But, also relying on Buller Coal, it remained open to the Court to conclude that, as a matter of fact and degree, such end use effects were too remote from the activities for which consent was sought to fall within s 104(1)(a).[53] This was analogous to s 108(1) as to the permitted scope of consent conditions; a condition to control a step for which no consent is required could not be “fairly and reasonably related to the subject matter of the consent” such as to permit the imposition of a condition in respect of it.[54] It followed, the Court considered, that any effect of putting the extracted water into plastic bottles was a “consequential effect” outside the scope of s 104.[55]
[52]CA judgment, above n 8, at [49].
[53]At [50]–[51] citing Buller Coal, above n 36, at [117] where McGrath, William Young and Glazebrook JJ in turn applied the analysis adopted by the Environment Court in Taranaki Energy Watch Inc v Taranaki Regional Council [2003] ELHNZ 239 (EnvC) at [84]–[85].
[54]CA judgment, above n 8, at [54]–[55] citing Newbury District Council v Secretary of State for the Environment [1981] AC 578 (HL) at 599 per Viscount Dilhorne, 608 per Lord Fraser, 618 per Lord Scarman and 627 per Lord Lane.
[55]CA judgment, above n 8, at [55].
The Court also identified five “conceptual difficulties” with bringing plastic bottle disposal within the scope of s 104:
(a)No consent is required to put water into bottles (nor to export and eventually dispose of those bottles) and, in this country, manufacturing typically occurs in zones where it is a permitted activity requiring no consent. It is “inconceivable” that disposal would be relevant under the RMA whenever a product is placed in a plastic bottle or container.[56]
(b)Disposal is, in any event, an action undertaken by a third party (the consumer) for which the applicant ought not to be held responsible.[57]
(c)Disposal within New Zealand is typically lawful, by placement in consented landfills through consented refuse collection infrastructure operated by or on behalf of local authorities. Disposal into the environment would be in breach of the Litter Act 1979 and unlawful.[58]
(d)Disposal offshore, whether lawful or unlawful in those jurisdictions, is too remote to be considered by a New Zealand consent authority.[59]
(e)Further, even if offshore disposal were relevant it would be too difficult to assess its effects in fact—and any condition attempting to control disposal could not be fairly and reasonably related to the water consent.[60]
Submissions
[56]At [56].
[57]At [57].
[58]At [58].
[59]At [59].
[60]At [60].
Before this Court, SOI carried the burden of the argument for the appellants on this issue. It argued that the Court of Appeal was wrong to focus purely on disposal and not the production step when disposal is “an inevitable and direct consequence” of creating bottles and filling them with water. SOI submitted that all plastics eventually end up in the environment whether by being burned, placed in landfills or otherwise disposed of. Recycling, it submitted, merely delayed that outcome as all plastic has a finite commercial life and must eventually find its way into the environment as microplastics or in other forms. Relying on a 2019 report of the Royal Society | Te Apārangi,[61] SOI argued that plastics are now environmentally pervasive and have been acknowledged at the level of the United Nations as one of the most serious environmental problems on a global scale.[62]
[61]Royal Society | Te Apārangi Plastics in the Environment: Te Ao Hurihuri – The Changing World (July 2019).
[62]See, for example, End plastic pollution: towards an international legally binding instrument EA Res 5/14 (2022), preamble.
SOI therefore submitted that the problem to be addressed is one of production not disposal, and the ultimate effects of producing plastic bottles at scale are “actual [or] potential effects … of allowing the activity” of water bottling in terms of s 104(1)(a). Further, they are “adverse”, “future” and “cumulative” effects in accordance with the definition in s 3, affecting “ecosystems and their constituent parts” in terms of the definition of the environment in s 2(1). SOI submitted that the five conceptual difficulties identified by the Court of Appeal should therefore not exclude proper consideration of those effects when consent is sought to produce plastic bottles on the scale proposed by OSL. Further, SOI submitted that the Court of Appeal applied Buller Coal incorrectly, since the controlling provisions in that case were materially different.
TRONA supported SOI, submitting that the effects of plastics disposal cannot be said to be de minimis and its effects must be given consideration under s 104. TRONA added that export also has end use tikanga effects; this submission is addressed below in the context of TRONA’s own appeal.
OSL argued that the appeal is advanced on a false premise. OSL’s operation will not add to the sum of plastic bottles in existence; rather, it will merely meet existing demand that would otherwise be met by another producer. According to OSL, its position is on all fours with Buller Coal. Moreover, OSL submitted that the applicant’s case related merely to the application of settled principle and did not give rise to a true question of law. That is because all three Courts below identified and applied the accepted authorities on the scope of “effects” under the RMA. Although the framing varied in matters of detail, all Courts concluded that the “nexus and remoteness” test under the RMA was not met in this case. Further, OSL emphasised that disposal is undertaken by third parties for whose disposal decisions OSL cannot be responsible. As OSL put it:[63]
The central but not sole point is that set out in Buller Coal (particularly in the Supreme Court) that the only effects that may be considered are those which directly result from exercising the activity or which follow inevitably from it: not independent subsequent effects or ones that (in terms of West Coast ENT) are irrelevant to the applications to the extent they seek permission to take water.
[63]Footnote omitted.
OSL submitted that the negative effects of plastic waste production can only be addressed through bespoke national legislation, such as the WMA, because adverse effect mitigation is beyond the institutional capacity of individual consent authorities. Attempting to address such a polycentric issue at the resource consent stage will lead to uneven, ad hoc decisions that will fail to address the problem. Further, and in line with the Court of Appeal’s analysis, the effects of plastic waste disposal arise for assessment when applications are made to establish and operate waste disposal facilities, not at the product creation stage.
OSL acknowledged that this analytical framework does not satisfactorily address two disposal pathways: illegal disposal and offshore disposal. As to illegal disposal, OSL submitted that is already controlled through bespoke littering laws; and as to offshore disposal, the consent authority has no jurisdiction to control or affect events beyond New Zealand’s borders.
The District Council took a similar position. In its view, widening the scope of “effects” (in the manner proposed by SOI) would have implications throughout the supply chain and beyond plastic bottle disposal. It would “dramatically change the system of consenting” and require councils to undertake inquiries they lacked the capacity to conduct, increasing both cost and time. The District Council referred to regulations promulgated under the WMA for the control of plastic shopping bags, and “plastic and related products”.[64] Nationally applicable regulations of that kind would apply to all identified products and not just to those created in the context of activities that happened to require a resource consent. It was submitted that this was, by far, the preferable approach.
[64]Waste Minimisation (Plastic Shopping Bags) Regulations 2018; and Waste Minimisation (Plastic and Related Products) Regulations 2022.
The Regional Council accepts that “unmitigated production of plastic bottles” is a matter of serious concern requiring a concerted response. But, it submitted, “seeking to address these issues through ad hoc resource consents under a policy framework which does not currently seek to address them is not sound planning”. Instead, central government could directly regulate the production of plastic bottles using the WMA or national environmental standards under the RMA. Further, the Regional Council submitted:
Straining the existing tests of nexus and remoteness to fill a perceived policy gap will have potentially significant implications for the future assessment of consent applications, placing an onerous burden on [consent] planners and, in turn, on compliance staff.
In any event, the production of plastic bottles is a District Council matter under s 31, as it relates to land use rather than water extraction. So, contrary to SOI’s submission, the Court of Appeal was right to treat the issue as one of waste disposal rather than waste production.
For completeness, we note that the parties addressed the relevance of the United Kingdom Supreme Court’s decision in Finch in further written submissions, as the decision was released following the hearing of this appeal. We will address those submissions and the decision’s implications below.
The RMA framework
As Professor Kenneth Palmer describes, the RMA is characterised by three key themes.[65] These are:
(a)sustainable management of natural and physical resources, the promotion of which is the RMA’s purpose;
(b)integrated management of natural and physical resources; and
(c)control of the adverse effects on the environment of human activities.
[65]Kenneth Palmer “Resource Management Act 1991: Purpose and National Direction” in Derek Nolan (ed) Environmental and Resource Management Law (looseleaf ed, LexisNexis) at [2.10].
The second and third themes are the means by which sustainable management is to be promoted. All three themes are engaged by the scope of “effects” issue, the third directly and the other two indirectly.
Section 104(1)(a)
We introduced s 104 earlier as the controlling provision in relation to resource consent applications generally. Importantly for our purposes, subs (1)(a) provides that consent authorities must have regard to “any actual and potential effects on the environment of allowing the activity”.[66] This is a standalone requirement that does not depend on activation through policy statements or plans. This reflects its role as a primary lever for achieving the third of the RMA’s three key themes: controlling adverse effects on the environment.
“Effects” on the “environment” defined
[66]Subject, of course, to pt 2: see s 104(1).
“Effect” is defined in s 3 of the RMA:
3 Meaning of effect
In this Act, unless the context otherwise requires, the term effect includes—
(a)any positive or adverse effect; and
(b)any temporary or permanent effect; and
(c)any past, present, or future effect; and
(d)any cumulative effect which arises over time or in combination with other effects—
regardless of the scale, intensity, duration, or frequency of the effect, and also includes—
(e)any potential effect of high probability; and
(f)any potential effect of low probability which has a high potential impact.
This definition is obviously the most important guardrail in any question of scope—but, reflecting the difficulty of the drafter’s task, there is no attempt to be exhaustive. It is difficult to conceive of a more open-textured definition.
The effects to which RMA decision-makers must have regard are those on the environment. In s 2(1), “environment” is also defined broadly and inclusively:
environment includes—
(a)ecosystems and their constituent parts, including people and communities; and
(b)all natural and physical resources; and
(c)amenity values; and
(d)the social, economic, aesthetic, and cultural conditions which affect the matters stated in paragraphs (a) to (c) or which are affected by those matters
The focus of this definition is on the physical environment but not exclusively so. There is also acknowledgement that humans and their built communities are a part of the environment and that there is a mutual cause and effect relationship between the social, economic, aesthetic and cultural conditions of human communities and the physical environment in which they are situated. That is, those four conditions present in all human communities can affect the environment and, in turn, the environment can affect those conditions. Thus, s 2 provides that where those conditions have that effect or are so affected, they too will form part of the environment. A similar idea is captured by the definition of amenity values referred to in para (c) of the definition of environment.[67]
“Sustainable management” defined
[67]Section 2(1) definition of “amenity values”. The definition provides that “amenity values means those natural or physical qualities and characteristics of an area that contribute to people’s appreciation of its pleasantness, aesthetic coherence, and cultural and recreational attributes”.
As foreshadowed, s 5(1) provides that the RMA’s purpose is the promotion of sustainable management of natural and physical resources. It is in the pursuit of this outcome that, under s 104(1)(a), consent authorities must consider the actual and potential effects on the environment of allowing the proposed activity. “Sustainable management” is defined in s 5(2) in the following broad terms:
(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.
The core ideas are that natural and physical resources must be managed in a way that: provides for present human needs (without compromising the needs of future generations); safeguards the life-supporting capacity of the biosphere; and avoids, remedies or mitigates adverse environmental effects.
As we will come to under the pt 2 issue, s 5 is supplemented by ss 6–8. They are of particular importance to TRONA’s appeal. If fact and context warrant it, the additional matters in pt 2 will also be relevant considerations, calibrated according to their respective statutory weightings, to the extent that they will also advance sustainable management. Part 2 is not just relevant to consents. It also controls the preparation of national standards or policy statements, regional policy statements, and regional and district plans. In this way, pt 2 drives the content of the cascade of national, regional and district planning documents, becoming more specific as to subject, resource or place down the cascade.[68] And, to a significant extent, it is the cascade that controls what activities require consent (and where), as well as the breadth of the consent authority’s inquiry. If the system operates according to statutory design, the result should be integrated management in accordance with ss 30, 31, 59, 64 and 80A, or, expressed fully: integrated promotion of sustainable management of natural and physical resources.
Application information
[68]To illustrate the carefully calibrated interrelationships between documents within the hierarchy, see, for example, s 45A(1) as to national policy statements; s 56 as to New Zealand coastal policy statements; s 58C(1) as to national planning standards; s 62(3) as to regional policy statements; s 67(3)–(4) as to regional plans; and s 75(3)–(4) as to district plans. See also, for example, Royal Forest and Bird Protection Society of New Zealand Inc v New Zealand Transport Agency [2024] NZSC 26, [2024] 1 NZLR 242 [Royal Forest and Bird] at [32] per Winkelmann CJ, Ellen France and Williams JJ; and Environmental Defence Society Inc v The New Zealand King Salmon Co Ltd [2014] NZSC 38, [2014] 1 NZLR 593 [King Salmon] at [30] per Elias CJ, McGrath, Glazebrook and Arnold JJ.
As foreshadowed, s 88 and sch 4 are also potentially relevant to the scope of “effects” to be considered under s 104(1)(a). Section 88(2)(b) requires that resource consent applications include the information about the proposed activity that is prescribed by sch 4. Clause 2 of that schedule sets out the required information, including an assessment of the activity against relevant pt 2 considerations and relevant provisions of applicable policy statements and plans within the cascade.[69] This reflects both the requirements of s 104(1)(b) and, ultimately, the evidential needs of the consent authority. Separately, an assessment of environmental effects is required by cls 6 and 7 reflecting the needs of the consent authority under s 104(1)(a). Clause 6 identifies the required information categories. It relevantly provides:
[69]Schedule 4 cl 2(1)(f), (g) and (2).
6 Information required in assessment of environmental effects
(1)An assessment of the activity’s effects on the environment must include the following information:
(a)if it is likely that the activity will result in any significant adverse effect on the environment, a description of any possible alternative … methods for undertaking the activity:
(b)an assessment of the actual or potential effect on the environment of the activity:
…
(d)if the activity includes the discharge of any contaminant, a description of—
(i)the nature of the discharge and the sensitivity of the receiving environment to adverse effects; and
(ii)any possible alternative methods of discharge, including discharge into any other receiving environment:
…
(2)A requirement to include information in the assessment of environmental effects is subject to the provisions of any policy statement or plan.
…
In addition, cl 7 sets out the matters that must be addressed in an assessment of environmental effects as required by cl 6(1)(b). It provides as follows:
7Matters that must be addressed by assessment of environmental effects
(1)An assessment of the activity’s effects on the environment must address the following matters:
(a)any effect on those in the neighbourhood and, where relevant, the wider community, including any social, economic, or cultural effects:
(b)any physical effect on the locality, including any landscape and visual effects:
(c)any effect on ecosystems, including effects on plants or animals and any physical disturbance of habitats in the vicinity:
(d)any effect on natural and physical resources having aesthetic, recreational, scientific, historical, spiritual, or cultural value, or other special value, for present or future generations:
(e)any discharge of contaminants into the environment, including any unreasonable emission of noise, and options for the treatment and disposal of contaminants:
(f)any risk to the neighbourhood, the wider community, or the environment through natural hazards or hazardous installations.
(2)The requirement to address a matter in the assessment of environmental effects is subject to the provisions of any policy statement or plan.
It may be seen that the relevant effects referred to in cl 7 range from neighbourhood effects at one extreme to effects at the scale of the environment at the other. That said, sub‑cl (2) of both clauses acknowledges that policy statements and plans will also seek to control environmental effects of activities on particular resources or in particular contexts. Where they do, those documents will shape how such effects are to be addressed in applications.[70] This is a part of the integrated management design of the RMA. This means that in most cases, evidence about the environmental effects of activities will enter the consent assessment through two interconnected routes: first, by way of the general directive in s 104(1)(a) to consider actual and potential effects on the environment; and second, under s 104(1)(b), through policies, objectives and rules whose purpose is to avoid, remedy or mitigate adverse environmental effects.
Our view
[70]This reflects the expectation that where policies, objectives and rules have been tested through public engagement and formal decision-making procedures, they may be taken to represent the requirements of pt 2 upon which they are based: RJ Davidson Family Trust v Marlborough District Council [2018] NZCA 316, [2018] 3 NZLR 283; and Royal Forest and Bird, above n 68.
Our review of the relevant statutory provisions makes clear that, on its face, s 104(1)(a) has a very broad scope. The key words in s 104(1)(a)—“environment” and “effect”—are defined inclusively and multi-. They are plainly intended to have wide import.[71] That is unsurprising since they serve the extraordinarily complex and polycentric statutory purpose of promoting sustainable management.[72] The legislature clearly did not intend that a restrictive approach should be taken to the application of these words.
[71]The definition of “effect” was described as “all embracing” by Joan Allin, Rob Fisher and Tony Randerson in the 1991 New Zealand Law Society seminar materials on the new Act: Joan Allin, Rob Fisher and Tony Randerson “Resource Management Act 1991” (New Zealand Law Society seminar, 1991) at 9.
[72]RMA, s 5(1).
That said, we accept that “effects” is not of limitless scope. Not every matter will require consideration under s 104(1)(a). Identifying the effects that are within s 104(1)(a)’s scope is an exercise of statutory interpretation in light of facts. Put another way, the meaning of “effects” must be determined by the words of the RMA construed in light of its purpose and context, and applied in the particular factual context.[73] The effects that will be relevant in any particular case will depend on the controlling objectives, policies and rules (if there are any) and on the facts as determined by the consent authority.
[73]Legislation Act 2019, s 10(1). Relevant effects may differ depending on the type of consent (and therefore its controlling section) and the content of applicable planning documents: see above at [57].
The prevailing approach to “effects” under s 104(1)(a) has been fact-. For example, in Cayford v Waikato Regional Council, the applicant challenged a proposal to take water from the Waikato River to supply Auckland, on the ground that it would deliver water of poor quality to Auckland consumers.[74] The Environment Court held the claimed effect would depend on the proposed level of treatment of the water and its intended end use. The claimed effect was therefore too contingent to be relevant.[75] On the other hand, Aquamarine Ltd v Southland Regional Council involved an application to take water from the surface of Deep Cove where it enters from the Lake Manapouri tailrace, to be exported by ship via Doubtful Sound.[76] There, the Court found that the effects on the Sound from ships accessing the Cove were within scope even though Aquamarine did not own the ships and would not be operating them.[77] In Beadle v Minister of Corrections, a 2002 decision, the Environment Court reviewed over two decades of jurisprudence on the meaning of “effects”, saying:[78]
[88] From reviewing all those cases, we discern a general thrust towards having regard to the consequential effects of granting resource consents, particularly if they are environmental effects for which there is no other forum, but with limits of nexus and remoteness. Of course the weight to be placed on them has to be case-specific.
[74]Cayford v Waikato Regional Council [1998] ELHNZ 404 (EnvC).
[75]At 12.
[76]Aquamarine Ltd v Southland Regional Council (1996) 2 ELRNZ 361 (EnvC).
[77]At 364 and 366–367.
[78]Beadle v Minister of Corrections [2002] ELHNZ 144 (EnvC) citing Metekingi v Rangitikei-Whanganui Regional Water Board [1975] 2 NZLR 150 (SC), Gilmore v National Water and Soil Conservation Authority (1982) 8 NZTPA 298 (HC), Annan v National Water and Soil Conservation Authority (No 2) (1982) 8 NZTPA 369 (PT), Application by Canterbury Regional Council [1995] NZRMA 110 (PT), Lee v Auckland City Council [1995] NZRMA 241 (PT), Royal Forest and Bird Protection Society of New Zealand Inc v Manawatū-Whanganui Regional Council [1996] NZRMA 241 (PT), Aquamarine, above n 76, Pokeno Farm Family Trust v Franklin District Council [1997] ELHNZ 84 (EnvC), Ngāti Rauhoto Land Rights Committee Inc v Waikato Regional Council [1997] ELHNZ 163 (EnvC), and Cayford, above n 74.
The approach developed over that time was relatively permissive, acknowledging that the RMA’s efficacy relies partly on its participatory approach to standard setting and consenting. And, as can be seen, the cases have taken a practical approach: limits on the effects to be considered tended to be worked out as matters of fact, degree and, where appropriate, weight.
This prevailing approach has proved workable in the ordinary run of appeals. However, there are cases that test the boundaries. These appeals are an example. While the word “effects” may be, in the abstract, broad enough to capture the environmental impact of plastic bottle disposal, the Courts below and respondents raised a range of overlapping justifications for excluding these effects from consideration. We address these now.
Too remote?
The overarching argument advanced by the respondents and influential in the Courts below is that the alleged effects are too remote to be captured by s 104(1)(a). The argument draws heavily from the suggestion of the majority in Buller Coal that scope 3 emissions may be outside the scope of s 104(1)(a) “effects”.[79]
[79]Buller Coal, above n 36, at [115]–[127] per McGrath, William Young and Glazebrook JJ but see at [94] per Elias CJ dissenting.
Some important background to Buller Coal is this. The case concerned the climate effects of offshore burning of coal mined here in New Zealand. The issue was whether the effects of greenhouse gases (GHGs) that would eventually be emitted by Buller Coal’s offshore customers (scope 3 emissions) were relevant to Buller Coal’s consent applications for roading and other infrastructure to support a proposed coal mine.[80] The majority found that scope 3 effects were irrelevant, but did so on the basis of 2004 amendments to the RMA which excluded scope 3 emissions from consideration in discharge to air applications.[81] The majority reasoned that if those effects were excluded in discharge applications, they could not be read back in at the prior mining stage.[82]
[80]The appeals did not relate to the mining itself as mining was a restricted discretionary activity and the District Plan did not include climate change effects as a relevant consideration for such activities; instead, only the consents for the ancillary aspects of the mine were challenged as these involved discretionary, controlled or non-complying activities under the District Plan: see Buller Coal, above n 36, at [104] per McGrath, William Young and Glazebrook JJ. Note another respondent, Solid Energy, also sought and obtained consents in relation to a separate site. Those consents were the subject of an appeal to the Environment Court by the Royal Forest and Bird Protection Society of New Zealand Inc. The parties to the appeal were joined as respondents in Buller Coal, but the Court found it unnecessary to address Solid Energy’s case in any detail as the issues and agreed facts were not materially different.
[81]See RMA, s 15(1)(c) as to discharge permits; and ss 70A and 104E as to the exclusion of climate change effects from consideration. The exclusions have since been repealed: Resource Management Amendment Act 2020, ss 19 and 35.
[82]Buller Coal, above n 36, at [168]–[174].
Those amendments are not engaged here and, in any event, have since been repealed. Instead, the analogy we are invited to draw is based on additional comments by the majority. In obiter, the majority expressed a tentative view that, regardless of the 2004 amendments, the climate effects of scope 3 emissions might have been irrelevant as a matter of general principle. While the majority accepted that questions of fact and degree would arise, it considered that scope 3 emissions were probably too indirect (depending on subsequent actions of others), too remote (particularly if burned offshore) or insufficiently tangible (since the effects of burning the coal from the subject mine would likely be imperceptible on a global scale).[83] Further, the majority reasoned, world demand for coal was “presumably” such that if coal that could not be taken from the Buller Coal mine it would be substituted with coal won from mines elsewhere in the world.[84]
[83]At [117] and following.
[84]At [122(a)].
In our view, Buller Coal is of limited assistance in this case. The cases are not on all fours: first, the 2004 amendments are irrelevant here and second, the consents in Buller Coal concerned only subsidiary aspects of the proposed mine whereas this case concerns consents for the whole activity (bottling spring water). Leaving those matters to one side, it is also significant that the Buller Coal appeals were set up as questions of pure statutory interpretation. They began in the Environment Court as applications for declarations that the consent authorities could not consider the climate effects of scope 3 emissions. In the usual way, the applications were accompanied by a brief statement of agreed facts, but the agreed facts did not engage with matters such as the variability of demand for coal or whether the climate effects on the environment of burning the subject coal would, in fact, be intangible.[85] There would, we infer, never have been agreement between the parties on the material facts in those respects.
[85]This is set out in the High Court judgment: Royal Forest and Bird Protection Society of New Zealand Inc v Buller Coal Ltd [2012] NZHC 2156, [2012] NZRMA 552 at [6]. The statement included references to the expected yield from each of the two mines, an acknowledgment that the coal mined would probably be burned resulting in the emission of GHGs and, in the case of one of the mines, an estimate of the quantity of CO2 likely to be omitted thereby. The Environment Court had issued an interim decision on the merits of the Buller Coal application before this Court’s decision was issued, but for obvious reasons, scope 3 emissions were not considered: Buller Coal, above n 36, at [113]–[114].
This procedural context is important because the majority’s analysis in this respect relied on the correctness of certain factual assumptions, albeit assumptions made tentatively. Indeed, the majority accepted that questions of fact and degree would inevitably arise.[86] That is also the position in these appeals and, as will be seen, a shortage of relevant facts is also a feature of this case, albeit for different reasons.[87]
[86]Buller Coal, above n 36, at [119].
[87]See above at [21].
For an alternative approach to a similar issue, SOI pointed to Finch. That case concerned the relevance of climate effects from scope 3 emissions that would be caused by the combustion of hydrocarbons extracted from wells for which planning consent was sought. The precise issue was whether the applicant was required to provide in its EIA information about these effects. The majority in Finch found for the appellant: the climate effects of scope 3 emissions were relevant such that they had to be included in the EIA.[88]
[88]Finch, above n 37, at [7], [101] and following and [174] per Lord Leggatt, Lord Kitchin and Lady Rose SCJJ.
The respondents submitted that Finch is of no assistance to the appellants because its statutory context was materially different to that in Buller Coal and the appeals before us. For example, the respondents pointed out that the required EIA had to address the project’s likely “significant effects”, both “direct and indirect”, on listed environmental “factors” including “climate”.[89]
[89]Town and Country Planning (Environmental Impact Assessment) Regulations 2017 (UK), regs 3 and 4 giving domestic effect to Directive 2011/92/EU on the assessment of the effects of certain public and private projects on the environment [2012] OJ L26/1 as amended by Directive 2014/52/EU amending Directive 2011/92/EU on the assessment of the effects of certain public and private projects on the environment [2014] OJ L124/1.
At one level these differences from the RMA’s terminology appear significant. But the heart of the inquiry in Finch was (as it is here) what effects are factually relevant to understanding the project rather than the particular statutory language. Importantly in that respect, the majority’s analysis was primarily driven by the fact that all petroleum products obtained by the project would be burned by someone, inevitably releasing a quantity of GHGs calculable by means of accepted methodologies.[90] That fact was “common ground, and indeed obvious”.[91] The contribution of these GHGs to climate change could also be calculated. This meant, the majority found, that the fact the petroleum is eventually burned by independent parties over whom the applicant had no control, is not a factor relevant to the scope of EIAs. Indeed, even if there was nothing the applicant could do to affect end user emissions, that too was something the consent authority and the public should know.[92] Nor was it relevant that the petroleum will be burned far from the project site, including in other countries. There is, the majority said, “no correlation between where GHGs are released and where climate change is felt”.[93]
[90]Finch, above n 37, at [7], [79]–[82] per Lord Leggatt, Lord Kitchin and Lady Rose SCJJ. See also at [110], [118], [123], [135] and [162] per Lord Leggatt, Lord Kitchin and Lady Rose SCJJ and [193] per Lord Sales and Lord Richard SCJJ.
[91]At [193] per Lord Sales and Lord Richard SCJJ.
[92]At [102]–[105] per Lord Leggatt, Lord Kitchin and Lady Rose SCJJ.
[93]At [97].
Stepping back, the words of the RMA make clear that in many cases—including this one—the question will not be whether a given effect on the environment is excluded as a matter of principle, but rather as a matter of fact and degree. This is reflected in some basic propositions that emerge from the interlinking definitions of “environment”, “effect” and “sustainable management”.
One such proposition is that if allowing an activity would either adversely affect the ability of natural and physical resources to meet the reasonably foreseeable needs of future generations or compromise the life-supporting capacity of an ecosystem, those effects are very likely to be relevant under s 104.[94] Another is that where allowing the activity may have that effect, this may be a relevant potential effect.[95] Whether that is so in any particular case will depend on considerations of “fact and degree”.[96] A third proposition is that the effect need not necessarily be likely, at least not if its potential impact will be high.[97] This means that the relevance and weight of less likely effects will also be application-specific matters of fact and degree. A fourth proposition is that where effects on the life-supporting capacity of an ecosystem or on natural resources or human communities may only arise over time or in combination with other effects, they may be relevant cumulative effects.[98] A fifth is that if the “scale, intensity, duration, or frequency” of the effect is relatively small, that will not necessarily rule it out of consideration; effects are potentially relevant “regardless” of their magnitude.[99] So it is not the case that only big, intense, continuing or repetitive effects will be relevant.
[94]RMA, s 5(2)(a)–(b).
[95]Sections 3(e)–(f) and 104(1)(a).
[96]Buller Coal, above n 36, at [119].
[97]RMA, s 3(f).
[98]Sections 3(d) and 5(2)(b).
[99]Section 3.
There can therefore be no hard and fast rule excluding indirect effects of allowing an activity—in other words, effects to which the applicant contributes but which occur only after some additional intervening act such as burning coal (Buller Coal) or oil (Finch). As the majority in Buller Coal accepted, there will be questions of fact and degree. The Court was careful not to express any concluded view on the question of whether scope 3 emissions engaged the general words of s (1)(a).[100] And as noted in Finch, exclusion on contingency grounds alone would be potentially illogical if it is clear on the facts that the independent action will inevitably be taken. In any event, as the appellants submitted, if positive effects involving contingent behaviour by third parties are in scope—for example, economic growth and job creation from proposed activities—then there is no good reason to exclude indirect or contingent adverse effects.
[100]Buller Coal, above n 36, at [115] per McGrath, William Young and Glazebrook JJ.
Further, effects that when viewed in isolation appear very small cannot be automatically ruled out, particularly where they accumulate or combine with other effects over time.[101] It follows that what makes an effect tangible enough in Buller Coal terms to be cognisable for the purposes of s 104(1)(a) is also likely to be application-specific and require evidence.[102]
[101]Compare Dye v Auckland Regional Council [2002] 1 NZLR 337 (CA) at [49] but note that the potential cumulative effect at issue in Dye was the precedent effect of a subdivision consent in a rural zone on the integrity of that zone; it did not relate to the sorts of physical effects at issue in this case.
[102]The same applies when determining whether effects are minor for the purposes of satisfying the non-complying activity gateway in s 104D(1)(a).
Likewise, there cannot be a hard and fast rule excluding the effects of offshore disposal from consideration. “Environment” is defined by reference to ecosystems, communities, natural resources, amenity values, social and economic conditions, and so forth. The definition is capacious and does not naturally suggest that all extraterritorial effects are excluded just because they are extraterritorial. National borders are determined according to law rather than facts, and environmental effects of activities undertaken in New Zealand will sometimes be insensitive to those borders. Finch makes that point in respect of scope 3 effects. In addition, taking effects outside New Zealand into account does not involve the consent authority acting extraterritorially. That is because RMA consents are only ever for activities that will be located in New Zealand and subject to New Zealand law.[103] Activities and their effects are not necessarily the same thing in RMA terms.
[103]Compare Buller Coal, above n 36, at [175] per McGrath, William Young and Glazebrook JJ.
As this Court said in Buller Coal, remoteness in RMA terms is a matter of fact and degree for which evidence is required except in the plainest of cases. If inquiry into the offshore effects of an activity is appropriate, the extent of such inquiry will depend on the facts and the degree to which the consent authority is assisted by it. We were told that the science of global environmental effects of plastics disposal, whether lawful or not, is now relatively sophisticated. We of course cannot determine whether such evidence will be helpful to a consent authority, but without knowing more, we are unable to say it will not be.
Similarly, the fact that third parties are responsible for disposing of the empty water bottles does not mean the effects of disposal are irrelevant to consenting for the production stage. That is particularly the case if disposal is inevitable—which it is. This is somewhat analogous to the circumstances in Finch and Buller Coal where the oil and coal would inevitably be burned by downstream purchasers—that was the point in buying it. Here, once the water has been consumed, the owner of the now empty bottle must get rid of it. It may not matter whether disposal is by indiscriminate littering or lawful placement in a landfill. That is because landfills are themselves a finite resource and create their own environmental burden; lawful disposal, too, has adverse effects.[104]
Substitution
[104]Section 3(1) of the WMA makes this point by providing that waste must be minimised and waste disposal decreased to protect the environment from harm and to provide environmental and other benefits.
We address the substitutability argument separately because it is, as we apprehend it, different to arguments about remoteness. Just as the consent applicants argued in Buller Coal, OSL submitted that controlling its production of plastic bottles serves no purpose. This is because if OSL did not produce the plastic bottles, another producer would (whether here or offshore). Put another way, the argument is essentially that, in a global market, the absence of global controls makes local controls pointless.
This is not an attractive argument. First, the adverse effects of plastic production are still “effects” relevant under s 104(1)(a) even if these effects might otherwise be generated by a third party. That is, if the effects on the environment of my proposed activity are demonstrated by evidence to be adverse, it cannot be an answer to posit that another producer would cause the same harm if I do not. The substitutability argument focuses only on the potential for additional future harm; this all too conveniently ignores the producer’s share of existing harm. Second, while there is a global market for bottled water, the plastics problem is at once global, national and local.[105] In that context, local regulatory initiatives may well have knock-on effects in other localities, at the national level or even globally. The management of environmental effects that have only in recent times become widely appreciated is likely to begin with incremental steps until a tipping point is reached.
“Integrated management” and the WMA
[105]As to global developments, see, for example, below at [221] and following per Winkelmann CJ and Glazebrook J.
A different issue identified by the respondent councils was this: if plastic bottle disposal can, depending on the facts, have relevant effects on the environment, what could the councils reasonably be expected to do about those effects in a single application for consent to extract and bottle water? The issue was aptly summed up by Ms Hill for the Regional Council. She accepted that “unmitigated production” of plastic bottles could harm the environment. But, she submitted, addressing that risk “through ad hoc resource consents under a policy framework which does not currently seek to address them is not sound planning”. These are matters of system design and efficacy that must not be ignored even if s 104(1)(a) is broad enough to include the global effects of plastics disposal.
As to that, the Court of Appeal made this point: bottle making and filling at scale does not generally require a resource consent because it is done in industrial zones where such activities are permitted.[106] It might be said in response that water bottling is a little different because, as we come to in relation to the activity status issue, OSL’s case is premised on the proposition that its operation must be located in a rural zone as that is where access to the valued spring water is obtained. Nonetheless, and putting spring water to one side, plastic bottles are also produced and filled with a myriad of other consumable liquids for which the Court of Appeal’s point holds true. Further, the plastic waste problem is far larger than plastic bottles. There may be no material gain for sustainable management and considerable unfairness for applicants in singling out this particular example of water bottling for special treatment when the effects generated by most other plastic bottle makers are unregulated by RMA.
[106]CA judgment, above n 8, at [56].
Determining whether plastic disposal effects can be avoided, remedied or mitigated, and if so how, is already a complex task. It will be made more complex by the fact that consent authorities lack the guidance of subject-specific objectives, policies, rules or standards, whether at national, regional or district level. We accept that proceeding in this fashion could not be held out as a model of integrated management of the natural and physical resources of a region or district.[107] There is, as the respondents submitted, a high risk of ad hoc decision-making that will not promote sustainable management.
[107]RMA, ss 30(1)(a) and 31(1)(a).
Related to the difficulties of integrated management in this case is the existence of the WMA. We have already noted that although waste creation and disposal is plainly a matter within the broad compass of the RMA, there are purposive and functional overlaps with the WMA. This was a matter of considerable focus in the respondents’ submissions. Section 3(1) of the WMA demonstrates that overlap:
3 Purpose of this Act
(1)The purpose of this Act is to encourage waste minimisation and a decrease in waste disposal in order to—
(a)protect the environment from harm; and
(b)provide environmental, social, economic, and cultural benefits.
…
The WMA deals with the subject of waste in specific ways that are relevant to the issues in this case. First, under pt 2 the Minister for the Environment can declare, by notice in the New Zealand Gazette, a product to be a “priority product” for which an accredited product stewardship scheme must be developed.[108] Second, regulations may be promulgated to control or prohibit either the disposal of specified products, or the manufacture or sale of products containing specified materials.[109] In relation to plastics, regulations prohibited the manufacture and sale of wash-off products containing microbeads and the sale of plastic shopping bags.[110] In 2022, regulations either prohibited or controlled the manufacture or sale of a long list of plastic products; the list included single-use plastic drinking straws, stirrers, cutlery, tableware and produce bags, plastic produce labels, cotton buds, PVC food trays and containers, certain polystyrene packaging, and any plastic product containing an additive to accelerate its disintegration.[111]
[108]WMA, ss 9–10. Under s 22(1)(a), regulations may be promulgated prohibiting the sale of priority products otherwise than in accordance with an accredited scheme.
[109]Section 23.
[110]Waste Minimisation (Microbeads) Regulations 2017; and Waste Minimisation (Plastic Shopping Bags) Regulations.
[111]Waste Minimisation (Plastic and Related Products) Regulations.
Third, and in addition to these quite significant central government powers, the WMA also imposes duties on territorial authorities to “promote effective and efficient waste management and minimisation” for each district and to adopt plans to achieve that.[112] The current Whakatāne District Waste Management and Minimisation Plan articulates the District Council’s obligations in the following terms:[113]
1.2 Why do we need a plan?
He aha tātou e hiahia ai he mahere?
Whakatāne District Council (the Council) has a statutory requirement under the Waste Minimisation Act 2008 (WMA) to promote effective and efficient waste management and minimisation within the district. We do this by adopting a Waste Management and Minimisation Plan (WMMP). We also have an obligation under the Health Act 1956 to ensure that our waste management systems protect public health.
Our WMMP sets the priorities and strategic framework for managing waste in our district. In line with the requirement of section 50 of the WMA, our WMMP needs to be reviewed at least every six years after its adoption. Councils may elect to review any or all aspects of the Plan at any time prior to this, if they consider circumstances justify such a review.
The WMMP includes a number of actions the Council and our communities will take to manage and minimise our waste. All the actions listed in our 2015–2021 WMMP were completed or are ongoing projects, such as school waste education.
[112]WMA, ss 42–43
[113]Emphasis in original.
There is substance to the argument that, because of the lack of scaffolding in the RMA cascade, treating plastics disposal as a relevant effect at the production stage would be contrary to integrated management. It must be accepted that promulgating national controls on plastic bottle production under the WMA would be a more effective way of reducing the effects on the environment of New Zealand-sourced plastic bottles. The essential argument for the respondents was that without the benefit of a multi-layered consideration of plastics production and disposal in the cascade, the RMA is not fit for purpose and should not be pressed into service.
Nonetheless, both the WMA and RMA focus on environmental effects—s 3(1) of the WMA and s 5(2) of the RMA say that explicitly. And there is no avoiding the fact that plastics disposal can harm the environment (a proposition accepted in fact by all parties). What then should be done when the RMA’s purpose and the terms of s 104(1)(a) are each wide enough to make plastic bottle disposal a relevant and potentially important effect in theory, but the supports designed to connect purpose to consent decisions—relevant objectives, policies, rules or standards in multi-level RMA instruments—have not been built? That gap inevitably makes any consent decision in which plastics production is raised both more difficult and, at the same time, less potent in terms of contribution to the statutory purpose. Nonetheless, the standalone directive of s 104(1)(a) is mandatory and underpinned by s 5(2)(c) which sits at the structural centre of the RMA. The fact that central and local government have not promulgated relevant RMA objectives, policies, rules or standards does not mean s 104(1)(a) can be ignored. That would see the tail wag the dog.
As the Court of Appeal in RJ Davidson Family Trust v Marlborough District Council held when discussing the relationship between pt 2 and s 104(1):[114]
… if it appears the plan has not been prepared in a manner that appropriately reflects the provisions of pt 2, that will be a case where the consent authority will be required to give emphasis to pt 2.
[114]RJ Davidson, above n 70, at [74].
And in the different circumstances of Environmental Defence Society Inc v The New Zealand King Salmon Co Ltd (where the issue was the relationship between instruments in the RMA hierarchy rather than consents), this Court referred to the appropriateness of direct recourse to pt 2 where there was “incomplete coverage” of relevant matters in the superior document in the hierarchy.[115] Part 2 thus acts as a backstop in consent decision-making. It ensures that if there is a gap in the cascade such that integrated management has not been achieved in relation to a relevant effect, then consent authorities must rely on the promotion of sustainable management and the requirements of ss 6–8.
[115]King Salmon, above n 68, at [90].
What then of the WMA? In different circumstances, for example if a comprehensive regime covering all plastics disposal had been promulgated under that Act, it might have been possible to suggest that for the purposes of s 104(1)(a) relevant adverse effects are adequately addressed by that means. For example, in Protect Aotea Auckland Council, the Environment Court needed to resolve potential tensions between different legislative regimes when applying broad statutory language.[116] The Court held that the dumping of dredging material outside the Coastal Marine Area (CMA) would have been a relevant (and inevitable) effect for the purposes of an application to undertake dredging inside the CMA, but as the dumping required separate consent under a different environmental regime (the Exclusive Economic Zone and Continental Shelf (Environmental Effects) Act 2012) the effect of dumping was necessarily excluded from consideration under s 104.[117]
[116]Protect Aotea v Auckland Council [2021] NZEnvC 140, [2021] ELHNZ 229.
[117]At [57], [68], and [74] and following.
The tikanga evidence, the decisions of the Courts below and the submissions before us have been summarised in the reasons of Ellen France, Williams and Kós JJ.[316] We add some more detail on the evidence of Dr Mason and Dr Merito and provide a fuller summary of the decision of the majority of the Environment Court as that was the focus of the submissions of Ngāti Awa before us.[317]
Evidence of Dr Mason and Dr Merito
[316]See above at [167]–[193].
[317]We have nothing to add to the majority’s discussion of pt 2 of the RMA above at [204]–[209] and [211]. Although we disagree with them as to the sufficiency of the assessment of the tikanga evidence by the majority of the Environment Court, had the evidence been properly considered, we would agree with the majority’s proposition above at [210] that direct reference to ss 6(e), 7(a) and 8 of the RMA would not have made any difference. This section therefore just addresses the issue of whether the Environment Court majority erred in its assessment of the tikanga evidence.
The evidence of Dr Mason and Dr Merito was:
When the wai leaves our shores to be sold overseas its mauri for Ngāti Awa is lost. This effect is due to the amount of water being taken out of the system to then be bottled and sold (a lot of it overseas). Not enough water has the opportunity to re-enter the system as a whole. …
Mā te tūtohu a Creswell e tānoanoa ai te mauri o te wai. Ko te kino o tēnei e pā ana ki te nui o te wai e ngotea ana i te ara wai kātahi ka pātarahia, ka hokona (ko te nuinga ki tāwāhi kē). Otirā, kāre e nui rawa te wai e hoki tōtika tonu mai ana ki ngā ara wai.
With regard to the differences in their evidence from that of Mr Eruera:
Our evidence is not focused on a challenge to our whanaunga Hemana Eruera’s evidence. That is important to us; we are whanaunga and those links will withstand this matter. However, we do disagree on the effects of this Proposal on te mauri o te wai and the ability of Ngāti Awa to be kaitiaki.
… Kāre a māua taunakitanga i te wero i te taunakitanga a tō māua whanaunga a Hemana Eruera. He whai tikanga tērā ki a māua; he whanaunga mātou, ā, he kaha ake ērā tātai tērā i tēnei kaupapa. Otirā, e whakahē ana māua ki ngā tūkinotanga o tēnei tūtohu i te mauri o te wai me te kaha o Ngāti Awa ki te noho hei kaitiaki.
We have a responsibility to our mokopuna and to our wai. That, alongside our tikanga Ngāti Awa, is the foundation for our evidence.
Kei a tātou te rangatiratanga o ā tātou mokopuna me te wai hoki. Koinā, me ngā tikanga a Ngāti Awa, te tūāpapa mō ā māua taunakitanga.
They said also that mauri wai and mauri tangata are bonded together:
It is the responsibility of the leaders of the hapū and iwi to maintain the bond. We are responsible for the present and future supplies of the life giving wai.
… Mā ngā rangatira o ngā hapū me te iwi tēnei hononga e hāpai. Kei a tātou te mahi nui ki te tiaki i te oranga o te wai ināianei me āpōpō hoki.
As to Creswell’s proposal they said:
Creswell’s Proposal will erode te mauri o te wai. The erosion is due to the amount of water being taken out of the system to then be bottled and sold. Not enough water has the opportunity to re-enter the system as a whole. The Proposal is therefore able to be distinguished from other activities such as irrigation. Creswell’s Proposal is sucking the water out of the system to sell; and to sell a lot overseas. Given the nature of the Proposal, the effects on te mauri o te wai continue to remain and cannot be solved.
Ka tānoanoa te mauri o te wai i te tūtohu a Creswell. Ko te tānoanoatanga e pā ana ki te nui mārika o te wai e ngotea ana i ngā ara wai kia pātarahia, kātahi ka hokona. Otirā, kāre e nui rawa te wai e hoki tōtika tonu mai ana ki ngā ara wai. Nō reira, ka kitea tonuhia te tino pūtake o te tūtohu nei i ētahi atu mahinga pēnei i te whakamākūkū whenua pāmu. Ko te tūtohu a Creswell e ngote ana i te wai i ngā ara wai ki te hoko; ki te hoko i te nuinga ki tāwāhi. Ko te āhua tonu o te tūtohu nei, ko ngā tūkinotanga i te mauri o te wai e kore e taea te karo.
They said further:[318]
Creswell’s Proposal is like a blood transfusion to others outside of our eco-system. The wai is being taken out without an opportunity to re-enter our system. There is no reciprocity for the environment for the wai to be sucked out without giving enough an opportunity to re-enter the water cycle. If we allow the wai to go to whenua kē, the mauri o te wai departs. The mauri cannot be restored at this point through karakia (or any other methods to restore the mauri).
He rite te tūtohu a Creswell ki te whakawhiti toto ā-whare ki te rāwaho i waho i tō tātau ake pūnaha hauropi. Kei te tangohia te wai, ā, kāre tonu he huarahi e hoki mai anō ai te wai ki ō tātou ara wai. Kāre kē he tāruatanga o te wai ki te taiao e kaha hoki mai anō ai te wai ki te pūnaha hauropi.
[318]They recognised that amendments to the proposal, “particularly in relation to how much water is being taken and what happens to it”, might make a difference, it often being a matter of degree. They also said that they did not have a problem sharing the taonga with anyone that may come to Aotearoa as that is part of the kaitiaki role and shows manaaki.
They explained that the role of a kaitiaki is as guardian of the resource for benefit of the ecosystem as a whole:
The guardianship is over all living things and is not just restricted to human sustenance. If all living things are sustained then the people are sustained.
… Ko te kaitiakitanga mō ngā mea katoa e ora ana, kauā ko te oranga tangata anake. Ki te ora ngā mea katoa, ka ora anō hoki ko te tangata.
The local hapū also have spiritual kaitiaki in te wai. Dr Mason and Dr Merito said:
If the mauri is diminished, or gone, the kaitiaki are not fulfilling their responsibility. That is particularly difficult for the hapū when the hapū are not the ones undertaking the activity that is causing the negative effects.[[319]]
… Ki te kore te mauri kāre ngā kaitiaki i te mahi i ā rātou mahi kaitiakitanga.
[319]The evidence did not include a reo Māori version of this second sentence.
In terms of economic benefits they said:
There may well be economic benefits of the Proposal. However, the economic benefits do not negate the detrimental effects on te mauri o te wai. Therefore, potential positive economic benefits cannot and should not be used as a reason to offset the negative effects on te mauri o te wai. He rerekē te mauri o te wai ki te putea mō ngā tangata.
Environment Court decision
In its “jurisdictional overview”, the majority said:[320]
The issue is whether, and if so to what extent, a consent authority or, on appeal, the Court, should or may consider matters beyond the particular activity for which consent is sought and take into consideration the end use of whatever may be produced by that activity or the effects of other activities for which consent is not required.
[320]EnvC judgment, above n 212, at [34].
The majority noted the argument for Ngāti Awa made in its opening submissions that the application is “for too much water to be sold too far away”.[321] Ngāti Awa said that the focus was on the tikanga effects of the proposal in the context of the Mataatua Declaration on Water 2012.[322] The majority said that they were urged “to consider the total nature of the consents applied for, including the take from the aquifer, the bottling of the water and its export overseas”.[323]
[321]At [35].
[322]As set out at [37] of the EnvC judgment, above n 212, “the Mataatua Declaration is an iwi planning document agreed and approved by the tribes of Mataatua in the Bay of Plenty region. The Declaration guides Ngāti Awa’s approach to policy development around a holistic view of freshwater. It affirms Ngāti Awa’s rights and responsibilities within its own constitutional framework to advocate for mana over water in its rohe. Counsel for [Ngāti Awa] submitted that it is within the context of this declaration that the broad opposition to the Creswell proposal has developed.”
[323]EnvC judgment, above n 212, at [38].
As outlined above, the majority considered that the end use of exporting water in plastic bottles was not a matter within its jurisdiction.[324]
[324]Above at [229]–[232].
The majority advanced some criticisms of Dr Mason and Dr Merito’s evidence.[325] The majority said that “[c]ustomary practices and traditional knowledge are not directly applicable to the export of bottled water. This is a modern-day question”. They expressed concern that there was “no evidence of a coherent widely held belief within Ngāti Awa regarding the adverse metaphysical effects of taking water for bottling and export”.[326]
[325]EnvC judgment, above n 212, at [96]–[97]. Those criticisms included that no explanation had been provided for what was too much and what distinguished this take from other existing takes, including for other commodities heavily reliant on water and which were also exported, such as milk and meat. We do not comment apart from to point out the evidence above at n 318, and to note that the water-reliant commodities referred to by the Environment Court rely on irrigation and are therefore different to the direct use of water by bottling it for sale overseas: see Dr Mason and Dr Merito’s comments on irrigation above at [277]. We also emphasise Ngāti Awa’s right to advocate for mana over water in its rohe, as set out in the Mataatua Declaration on Water.
[326]EnvC judgment, above n 212, at [100].
The majority said that:
[101] Evidence on cultural topics of this kind can present challenges to the traditional approach of common law courts, of which this Court is one, to the assessment of such evidence. Nonetheless, the requirements of ss 6(e), 7(a) and 8 of the RMA require this Court to undertake such assessments in a way that is consistent with the interests of justice. In Ngāti Hokop[ū] ki Hokowhitu v Whakatāne District Council[327] the Court proceeded according to what was there described as a “rule of reason”[328] to test the evidence on issues raising beliefs about values and traditions by listening to, reading and examining:[329]
·whether the values correlate with physical features of the world (places, people);
·people’s explanations of their values and their traditions;
·whether there is external evidence (e.g. Māori Land Court Minutes) or corroborating information (e.g. waiata, or whakatauki) about the values. By “external” we mean before they became important for a particular issue and (potentially) changed by the value-holders;
·the internal consistency of people’s explanations (whether there are contradictions);
·the coherence of those values with others;
·how widely the beliefs are expressed and held.
[327]Ngāti Hokopū ki Hokowhitu v Whakatāne District Council (2002) 9 ELRNZ 111 (EnvC).
[328]In the sense used generally in philosophy rather than the specialised sense used in competition and anti-trust law. In TV3 Network Services Ltd v Waikato District Council [1998] 1 NZLR 360 (HC), Hammond J used the term to distinguish an objective approach from a per se objection or veto which is unlawful under the RMA: see Minhinnick v Watercare Services Ltd [1998] 1 NZLR 63 (HC).
[329]Ngāti Hokopū ki Hokowhitu, above n 327, at [53].
The majority articulated the differences between the evidence of Dr Mason and Dr Merito and that of Mr Eruera in the following manner, indicating that they preferred the evidence of Mr Eruera:[330]
[102] Dr Mason and Mr Merito believe that in the absence of any opportunity for return to Papatūānuku in the narrow context of the original source of the water, the mauri of the water is lost. The view of Mr Eruera that the cycle of water and the mauri of that water operates at a much broader scale is consistent with the biophysical western science understanding of all water as part of a constant replenishing global cycle as described by Mr Goff.
[103] The evidence of Dr Mason and Mr Merito on the nature and scale of the adverse metaphysical effects was that these effects are so great as to warrant declining consent. We accept these beliefs are honestly held and perhaps are shared by many members of the iwi, but we prefer the evidence of Mr Eruera that te mauri o te wai is retained as water passes through its many forms before returning to Papatūānuku to begin its journey again within the earth’s water cycle.
[330]EnvC judgment, above n 212 (footnote omitted).
The majority expressed the view that “water should be considered in the context of the resource rather than simply as any volume of water”. They accepted that “water is essential to life on earth”, and that “[t]he health or hauora of the environment, the water and the people are connected and inter-dependent.”[331] They said:
[105] Using that approach, a taking of water would be too much if it threatened the sustainable management of its source, so that even local taking and use for domestic purposes and stock could be too much if the source of water were very limited. Both the protection of the water and enabling the use of the water are part of the sustainability of the water resource. We think that such an approach would demonstrate consistency between the purpose of the RMA and tikanga Māori.
[331]At [104].
With regard to the export of water the majority said:
[107] Considering the export of this water, we do not find any reason why, if the take is sustainable, the export would not be. Any use of the water, particularly a consumptive use, will have generally similar physical effects. For this aquifer, uses include a range of products, many of which are likely to be taken and consumed or otherwise used outside the district and the region. As noted in our jurisdictional overview, while there is public debate about export of water from New Zealand, there is no legal basis on which we can restrict that activity. In terms of the evidential basis on which we might refuse consent to the increased take because of its intended purpose for export, we do not see any sufficient connection in this case, either in terms of physical or metaphysical effects of export, for basically the same reasons as our assessment of the physical and metaphysical effects of the take.
The summary given by the majority on this point is set out in the reasons of Ellen France, Williams and Kós JJ above at [187].
Our assessment
Ngāti Awa’s position, both before the Environment Court[332] and before us, is that the export of wai outside of Aotearoa negatively affects te mauri o te wai and that the production, use and export of plastic bottles impacts its ability to be kaitiaki. We accept the submission that the error made by the Environment Court majority (that there was no jurisdiction to consider end use and in particular plastic pollution) meant that the majority in the Environment Court did not consider the tikanga effects from an end-use perspective.
[332]See above at [274]–[281] and [283].
This was made quite explicit by the majority in their jurisdictional overview,[333] and repeated in their discussion of the tikanga evidence where they said that they did not consider there was any “legal basis on which we can restrict that activity [the export of water]”.[334] That was an error of law for the reasons set out above.[335]
[333]See EnvC judgment, above n 212, at [64]–[66].
[334]See at [107], reproduced above at [289].
[335]See above at [242]–[249]. The approaches of the High Court and the Court of Appeal, although not based on jurisdictional grounds, were also in error, as explained above at [242]–[249] and in the majority’s reasons above at [63]–[77].
While the bottling of the water may not have been the primary focus of the tikanga evidence of Dr Mason and Dr Merito, it was made clear that they were talking about the whole of the process of taking, bottling and exporting (both in respect of te mauri o te wai and Ngāti Awa’s kaitiaki role).[336] The whole process was also discussed in Ngāti Awa’s submissions before the Environment Court.[337]
[336]See above at [274], [277] and [280]–[281].
[337]See above at [283].
As a result of the jurisdictional error, the Environment Court majority concentrated on the water take only in its assessment of the tikanga evidence. They also characterised the concern as being the “adverse metaphysical effects”,[338] preferring the evidence of Mr Eruera because it was consistent with “the biophysical western science understanding” of the water cycle.[339]
[338]EnvC judgment, above n 212, at [100], [103], [134] and [156].
[339]At [102], and see at [103] and [107].
What are termed “metaphysical effects” were certainly a focus of the tikanga evidence, but Dr Mason and Dr Merito also referred to the effect on the ecosystem generally,[340] the responsibility to future generations[341] and the relationship between mauri wai and mauri tangata.[342]
[340]See above at [274] and [277]–[278]; and EnvC judgment, above n 212, at [79]. We note that the effects on the ecosystem of plastic pollution are global: see above at [223]–[224] and [226]–[227].
[341]See above at [276].
[342]See above at [276].
The Royal Society | Te Apārangi, in its 2019 report, identified the very real effects of plastic pollution for Māori which were not considered by the majority of the Environment Court because of the jurisdictional limit they wrongly considered existed:[343]
For Māori, understanding and connecting with the natural environment is integral to identity, whakapapa and culture. Plastic waste and debris can affect the mauri, or life force, of the environment, which can therefore affect cultural health and wellbeing.[344] Customary harvesting practices that may involve higher levels of consumption of raw fish, shellfish, and whole fish also give greater exposure to potential health risks. These factors, and the depth of cultural connection with the natural environment, mean that Māori will experience a disproportionate burden of risk from plastic waste in Aotearoa New Zealand.
[343]Royal Society report, above n 224, at 28. We note that this report was published in July 2019, which was after the Environment Court hearing in May 2019, but before the decision was issued on 10 December 2019.
[344]Jim Williams “Resource management and Māori attitudes to water in southern New Zealand” (2006) 62 New Zealand Geographer 73.
Further, the majority did not resolve the differences between Mr Eruera and Dr Mason and Dr Merito with regard to economic benefit,[345] which was in fact the significant difference between them.[346] And any alleged benefits must of course be weighed in light of plastic pollution.[347]
[345]We do note that extractive industries have not had a good track record of providing economic benefits for indigenous peoples globally, even where the extraction occurred on indigenous land: see generally Cathal M Doyle and Andrew Whitmore Indigenous Peoples and the Extractive Sector: Towards a Rights‑Respecting Engagement (Tebtebba Foundation, Baguio City (Philippines), 2014); Emily Caruso and others Extracting Promises: Indigenous Peoples, Extractive Industries and the World Bank (Tebtebba Foundation, May 2003); and Lisanne Raderschall, Tamara Krawchenko and Lucas Leblanc Leading practices for resource benefit sharing and development for and with Indigenous communities (OECD, Regional Development Papers No. 01, 2020).
[346]As explained by the majority above at [196]–[197] and [200].
[347]See above n 259.
Finally, Ngāti Awa submitted before us that the proper conception of its evidence should have been as holistic and inclusive of end-use effects capable of consideration under the RMA. He Poutama was referred to as providing a framework for the consideration of the tikanga effects and tikanga evidence.[348] We also accept that submission.[349]
Should the application have been declined or further evidence sought?
High Court decision
[348]Te Aka Matua o te Ture | Law Commission He Poutama (NZLC SP24, 2023) at [3.10], [3.18] and 102. Courts have to guard against the natural tendency to accept a view of tikanga that accords with Western values and evidence.
[349]We are not to be taken as commenting on the “rule of reason” approach referred to by the Environment Court majority: EnvC judgment, above n 212, at [101], reproduced above at [286]. As the majority say, it was of limited assistance in this case: see above at [198].
As noted above, the High Court said that the Environment Court majority was wrong to hold that, as a matter of law, they were precluded from considering the effects of plastic pollution.[350] The Court went on to comment, however, that the majority’s decision arose in the unusual circumstances of this case, where the issue had been raised by the Environment Court and was not part of the appellants’ case. In such circumstances, the Environment Court was not required “to seek further evidence or decline the application on the basis of inadequate information”.[351]
Court of Appeal decision
[350]Above at [237].
[351]HC judgment, above n 211, at [157].
The second question identified by the Court of Appeal was whether the High Court erred in finding that the Environment Court did not need to seek further evidence or decline the application for consent, in circumstances where there was evidence as to the scale of the bottling operation but not as to the scale of the adverse effects of plastic bottles being discarded.[352] The Court of Appeal said that its conclusion on the first question “effectively compels a negative answer” to this second question.[353] The Court of Appeal noted that no party before the Environment Court had suggested that evidence should be called “about the scale of adverse effects of plastic bottles being discarded”.[354] Nor had this issue been raised at any stage prior to the Environment Court hearing.[355]
[352]CA judgment, above n 212, at [3(b)] and [67].
[353]At [68].
[354]At [70].
[355]At [70].
The Court of Appeal accepted that, if the Environment Court considered an issue of significance to the disposition of the case before it warranted further evidence, it could call for further evidence.[356] However, in this case, while one member of the Environment Court considered that the end use of the plastic bottles was relevant, the majority did not. “Given that they had a contrary view, they were entitled to act on it.”[357] The Court of Appeal said:
[77] Except in cases where it is clear that an issue should have been the subject of evidence, we do not consider the Environment Court is obliged to procure evidence on it. Where evidence of this type has not been called, often the most appropriate course for the Court to follow would be to decide the case on the basis that the evidence was not available, with appropriate consequences for the disposition of the proceeding before it.
[78] Although the Court is able to adopt an inquisitorial approach, we consider that its primary duty in an appeal concerning whether a resource consent should have been granted or declined is to consider the issues raised by the parties and the evidence they have called, and apply the relevant statutory provisions in the RMA. Any other approach would be likely to lead to increased uncertainty, cost and delays. We add that although the nature of the Environment Court’s jurisdiction and obligations under part 2 of the RMA will often require a more flexible approach than that which would be followed in civil litigation in the District Court or High Court, a party to proceedings before the Environment Court should ensure it calls relevant evidence to support the issues it wishes to raise. An approach that relies on the Court itself to seek the evidence is not to be encouraged and is unlikely to succeed.
Our assessment
[356]At [75]
[357]At [76].
We accept SOI’s submission that it was for Creswell to address in its proposal all the relevant effects, including plastics pollution. Ellen France, Williams and Kós JJ categorise this submission as taking the “high ground”,[358] but it is in fact what the RMA requires.
[358]Above at [106].
Section 88(2)(b) of the RMA provides that an application for a resource consent must “include the information relating to the activity, including an assessment of the activity’s effects on the environment” required by sch 4. Under sch 4 cl 6(1)(b), an assessment of environmental effects (AEE) must include “an assessment of the actual or potential effect on the environment of the activity”. It must also include, under cl 6(1)(e), “a description of the mitigation measures … to be undertaken to help prevent or reduce the actual or potential effect”.[359]
[359]For practical information on preparing applications, see Ministry for the Environment | Manatū Mō Te Taiao A Guide to Preparing a Basic Assessment of Environmental Effects (Wellington, 2006). This publication draws attention to the “very broad” definition of effects and says that all effects must be addressed: see at 9, 17 and 27.
In this case, Creswell did not include plastic pollution as one of the effects of the project in its AEE.[360] That it did not do so may well have been because of a misunderstanding as to the law.[361] Were this the case, that misunderstanding, and the fact that it was shared by the majority of the Environment Court, the High Court and the Court of Appeal, does not mean that Creswell was excused from its obligations under s 88 and sch 4.[362]
[360]See the comment of Commissioner Kernohan at [334] of the EnvC judgment, above n 212, reproduced above at [234].
[361]It is possible that, at the application stage, this misunderstanding of the law was shared by the current appellants but that also is irrelevant in that, under the RMA, it was Creswell that should have included plastic pollution in its application as a relevant effect.
[362]Given the High Court and the Court of Appeal did not consider plastic pollution to be a relevant effect it is not surprising that they did not consider the obligation of Creswell under s 88 and sch 4, nor that they came to the decision they did on the obligation of the Environment Court either to call for evidence on that issue from the parties or to decline the application as Commissioner Kernohan would have done.
As a relevant effect was not included in the AEE, the Councils should have required that information to be included before considering the proposal and, as they did not, the Environment Court should either have declined the application (as Commissioner Kernohan would have done) or required Creswell to put the relevant evidence before it.[363]
[363]This would have required also giving SOI and Ngāti Awa the opportunity to put evidence before the Court, including additional tikanga evidence concentrating specifically on plastic pollution. We note the comment of the Court of Appeal that, where the evidence in support of the application is incomplete, although the Environment Court can adopt an inquisitorial approach, the better course may be to decide the case on the evidence before it: see CA judgment, above n 212, at [77]–[78], reproduced above at [301]. In this case that would have meant refusing the application, as Commissioner Kernohan would have done: see EnvC judgment, above n 212, at [322] and [346].
Even if it had not been Creswell’s obligation to address all relevant effects, including plastic pollution, we would not have dismissed the appeal on what is essentially a pleadings point as to the scope of the appeal, given the devastating effects of plastic pollution on the environment globally.[364]
Result
[364]Contrary to the position taken by the High Court and by the majority: see above at [238]; and above at [112]–[121] per the majority. In any event, even if the issue of plastics pollution was raised primarily by Commissioner Kernohan, the end use of the bottles had been part of Ngāti Awa’s argument in the Environment Court: see above at [229].
We would allow the appeals and remit the proposal for reconsideration by the Environment Court.
We would make the usual costs awards in the appellants’ favour and remit the question of costs in the Courts below to be determined by those Courts in light of this judgment.
Solicitors:
LeeSalmonLong, Auckland for Appellant in SC 1/2023
Whāia Legal, Wellington for Appellant in SC 2/2023
Brookfields Lawyers, Auckland for First Respondent in SC 1/2023
Cooney Lees Morgan, Tauranga for First Respondent in SC 2/2023
Buddle Findlay, Wellington for Second Respondent in SC 1/2023 and SC 2/2023
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