Government mulls law change in wake of irrigation battle
The Government is considering a law change after a court overturned a pollution discharge consent for a mega-irrigation scheme.
The High Court ordered Canterbury’s regional council to reconsider a decision to allow the discharge of nitrogen and other contaminants from irrigated dairy land.
Environment Canterbury launched an appeal. But worried the ruling may affect hundreds of consents in the region, including those for a wastewater treatment plant, stormwater, marine aquaculture and irrigation schemes, the council has asked Chris Bishop, the minister responsible for resource management reform, to urgently step in to amend legislation.
However, not all councillors supported the request, and at a council meeting last week debated whether it should have been sent before they had a chance to debate it. They voted to send a supplementary letter.
Advocacy group Environmental Law Initiative (ELI) asked for a judicial review of the 2021 decision by ECan to grant a resource consent to Ashburton Lyndhurst Irrigation Ltd (ALIL).
It allowed, over a decade, the use of synthetic nitrogen fertiliser in an area that stretches between the Hakatere/Ashburton and Rakaia rivers, from the foothills of the Southern Alps to the Canterbury coast. It’s about 177,000 hectares – or 30% of the Ashburton district area.
The Ashburton River flows into the Hakatere hāpua (a lake which forms behind a bank along the beach) and a breeding area for vulnerable native fish and birds.
ELI argued ECan did not properly consider the law relating to the effects of the nitrogen and failed to recognise the “downstream” adverse effects, that nitrates can pollute coastal lagoons and oceans.
This breached a clear prohibition in section 107 of the RMA.
ELI also said the council did not take into its own legal requirements when making the decision, such as the Canterbury Land and Water Regional Plan, nor the New Zealand Coastal Policy Statement – a mandatory national policy statement that sets out guidance for councils.
The co-operative serves more than 200 farmers who are now in limbo.
“Our planning framework recognises that ambitious outcomes can’t be delivered in the short-term without significant costs to communities, and that resource use remains a critical component of our economy,” council chairperson Peter Scott wrote to Bishop. “The court found significant adverse effects must be immediately avoided at the time the consent is granted.”
He asked the Government to “urgently” amend s107, as well as other changes and suggested this could be done as early as this month.
Bishop, who is overhauling resource management laws, has asked for advice on the issue. “No decisions have been made. It will be considered as part of possible amendments in RM Amendment Bill 2 we are looking to introduce later in the year.”
Matt Hall, ELI’s director of research and legal, said the “knee-jerk” change was “extremely concerning”.
“We are disappointed that ECan has sought to make an ad-hoc change to the RMA in response to losing a High Court case,” he said.
“ECan’s statement that avoiding significant adverse effects on aquatic life ‘is difficult to achieve’ is an admission that the council allows discharges which result in such effects.
“Section 107 is an important and fundamental backstop in the RMA that protects the environment. It contains basic limits to the level of freshwater pollution councils can permit. This protection for freshwater has been in place throughout the duration of the RMA.”
At a May 7 meeting, councillor Vicky Southworth was disappointed the letter was “couched in such overwhelmingly economic terms”.
“There is really very little acknowledgement of the importance of our environment in this in this letter. It’s very much about the impact on the economy.”
Southworth proposed sending a second letter, and councillors voted in favour.