Source: Environment Canterbury Regional Council
A recent court decision to set aside a discharge consent for an irrigation scheme could have wide-ranging impacts on economic activity around the country.
In March this year, the High Court found that a material error of law had been made in the Commissioner’s decision (PDF file, 1015.77KB) to grant a discharge consent to Ashburton Lyndhurst Irrigation Ltd (ALIL). The decision will have wide-ranging impacts on future applications for all types of discharge consents where water quality is degraded.
ALIL’s discharge consent authorised the discharge of nutrients onto or into land from farming activities between the Hakatere/Ashburton and Rakaia rivers. Following the release of the decision, affected farmers will need to rely on the previous ALIL discharge consent until further decisions are made.
Canterbury Regional Council Chief Executive Dr Stefanie Rixecker said the decision has highlighted a need for clarification on the intention behind Section 107 of the Resource Management Act (RMA).
Rixecker said it was already widely acknowledged that the decision has potentially serious repercussions for the way freshwater improvements are achieved, both in Canterbury and across New Zealand.
Decision raises questions over policies and planning frameworks
The Canterbury Land and Water Regional Plan (LWRP) sets a framework by which resource consents can be granted in areas with degraded water quality if significant reductions in the discharge of contaminants can be achieved over the life of the consent.
However, in the ALIL decision, the High Court found that the RMA does not allow for reductions in the discharge of contaminants to occur over time where the discharge, either by itself or in combination with other discharges, has given rise to significant adverse effects on aquatic life.
“The Court’s interpretation of the RMA calls into question the framework we have developed with our mana whenua partner and communities over a long period to drive freshwater improvements,” Rixecker said.
“We are addressing this challenge in two ways – by approaching the Government for changes to the RMA, which would provide an enduring long-term solution, and by appealing the decision.”
Canterbury Regional Council Chair Peter Scott has sent a letter to Ministers Chris Bishop and Penny Simmonds seeking an urgent amendment to the RMA to address the issue.
“We have raised this risk with the Government because there appears to be a misalignment between the RMA and the National Policy Statement for Freshwater Management, which recognises the need to drive freshwater improvements within a timeframe that is both ambitious and reasonable – within a generation, for example. The High Court decision tells us that significant adverse effects must be immediately avoided at the time the consent is granted, which is very difficult to achieve,” Rixecker said.
Successful approach in Waitaha/Canterbury
“The approach taken to freshwater management in Waitaha/Canterbury has been successful in promoting continued economic progress via productive use of resources while at the same time addressing the environmental impacts of these activities,” Rixecker added.
“We have decided to appeal the decision because of its potentially wide impact – both in Canterbury and nationally – and it is important for us, consent applicants and communities across New Zealand, that we have clarity and certainty.
“In the meantime, we are bound to apply the law as it currently stands – as reflected by the High Court decision, which means we need to apply the decision when considering discharge permits in the future.”
