ECan loses challenge to irrigation scheme
A court has ordered Canterbury’s regional council to reconsider a decision to allow the discharge of nitrogen and other contaminants from irrigated dairy land.
The High Court found Environment Canterbury (ECan) unlawfully granted a resource consent to Ashburton Lyndhurst Irrigation Ltd (ALIL). It essentially 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, 000ha – or 30% of the Ashburton district area.
The landmark ruling could now have major implications for future large-scale irrigation schemes – and how the Resource Management Act is applied. But its not yet clear if the 228 farmer-shareholders of ALIL must stop using the mega-irrigation scheme until ECan reconsiders the consent application.
Advocacy group Environmental Law Initiative (ELI) asked for a judicial review of the 2021 decision by ECan to approve the discharge.
ELI Director of Research and Legal Matt Hall said the ruling is “hugely significant” for freshwater management and raised serious questions about how ECan makes consent decisions relating to water pollution.
ELI argued that when approving the consent, ECan did not properly consider the law relating to the effects of the nitrogen on the environments where it would end up. It failed to recognise the “downstream” adverse effects of pollution – ie, nitrates don’t just pollute rivers, but the coastal lagoons and oceans into which they flow.
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 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.
Justice Cameron Mander said it appeared “indisputable there will likely be continuing significant adverse effects on aquatic life for the time being”. And he found ECan didn’t properly consider coastal policy.
On both counts, this was an error of law. ELI also unsuccessfully challenged that ECan’s decision not to publicly notify the consent application was unlawful.
Hall said ELI was now examining other consents around the country to check whether they have also breached the s107 prohibition.
He called on ECan to urgently review its discharge consents and use of coastal policies in consent decision making.
ECan director of operations Stephen Hall said the council would take time to understand the implications of the ruling, whether ALIL would appeal and if the company wanted to proceed with the consent application. The council was not aware of any other consents that may have breached the RMA prohibition, he said.
“However, in light of the High Court decision, we will be reviewing how we apply both section 107 of the RMA and the New Zealand Coastal Policy Statement regarding cumulative effects, in cases where discharge permits are lodged for catchments where existing water quality is having significant adverse effects on aquatic life.”
ALIL chief executive Rebecca Whillans said the co-operatively owned irrigation scheme was disappointed with the decision.
“We were pleased with the way Environment Canterbury defended their decision and we are working closely with them as we consider our next steps,” she said.
Neither the council nor ALIL responded to a question about whether farmers must cease using the irrigation scheme.
Intensive dairy farming, which requires huge volumes of water and synthetic nitrogen to be poured on to the land, has become increasingly controversial as people worry about the pollution of once-pristine rivers and safe drinking water.
Proponents say the region’s economy would lose its lifeblood without irrigation consents for farming.
Nitrate is highly soluble and rainfall causes it to seep into shallow groundwater, agricultural drains, streams, and eventually into rivers, lakes and estuaries.
Once in water, it is difficult to remove, and it can reduce the amount of oxygen, leading to dramatic increases in aquatic plant growth and changes in the types of plants and animals that live there.
The Government said last week it planned to amend the RMA this year, before introducing into Parliament a replacement bill in mid-2025.