Summary
Muaūpoko Tribal Authority (“Muaūpoko”) and Te Rūnanga o Raukawa (“Raukawa”) were unsuccessful in an application for judicial review of a ‘vegetable exemption’ in the National Policy Statement for Freshwater 2020.
Background
Muaūpoko and Raukawa each represent iwi and hapū who assert claims of rangatiratanga (authority) and kaitiakitanga (guardianship) over Lake Horowhenua and Hōkio stream.
The National Policy Statement for Freshwater Management (“Policy”) commenced in 2020, and provided objectives and national bottom lines for water quality which must be implemented by regional councils. The Policy includes a provision colloquially referred to as the ‘vegetable exemption’. It permits the regional council to set water quality targets for Lake Horowhenua and the Hōkio stream below national bottom lines, and lasts for 10 years or until it is replaced by National Environmental Standards or other regulations. Where the targets are set below bottom lines, they must continue to achieve an improved state without compromising the domestic supply of vegetables and food security.
Muaūpoko and Raukawa took issue with the waterways being treated differently to others in New Zealand. The parties challenged the legality of the exemption and its compliance with Part 2 of the RMA and the principles of the Treaty.
The Case
Was the vegetable exemption contrary to the RMA?
Muaūpoko and Raukawa submitted that the exemption breached the purpose of the Resource Management Act 1991 (“RMA”), which is to promote the sustainable management of natural and physical resources. The Court disagreed, holding the purpose does not establish an environmental bottom line the exemption must meet.
The Court also found the exemption did not breach any other provision within the RMA, as it did not exempt the regional council from complying with other targets set by the Policy. These included the obligation to give effect to Te Mana o te Wai, other policies, and the obligation to involve tangata whenua in decisions affecting freshwater bodies. The Court deemed the exemption was internally consistent with its respective policy and legally valid.
Did the Minister fail to take into account mandatory relevant considerations?
Muaūpoko and Raukawa submitted that the Minister failed to have regard to mandatory relevant considerations required as part of their evaluation.
The Court held the Minister had actively considered all relevant considerations required under the RMA, including the interests of iwi and hapū when making the decision. The Minister was not required to consider the respective merits and strength of Muaūpoko and Raukawa’s claims to the area.
Muaūpoko submitted there were other less harmful and culturally offensive options available to the Minister. Another option referred to in briefing papers was to require councils to set targets at or above the national bottom line while having regard to the importance of vegetable growing. The Court held the merits of such a decision were outside the scope of judicial review, and it was the Minister’s prerogative as to which option was selected.
Was there adequate consultation?
The Court held that while consultation before the exemption would have been preferable, targeted consultation following the exemption was sufficient in the circumstances. The Judge noted the limited time frame for the vegetable exemption was initially suggested by Raukawa. While the Minister was not required to agree with any submissions, the fact a proposal was directly implemented suggested the consultation was genuine and approached with an open mind.
The Court also noted the consultation was still ongoing, meaning the parties would have new opportunities to provide alternatives which better managed their concerns.
Was the vegetable exemption contrary to Treaty principles?
The Court was satisfied the Minister adequately considered the principles of the Treaty of Waitangi throughout consultation and when deciding to include the vegetable exemption. Edwards J reiterated the exemption does not relieve the regional council from setting targets that give effect to Mana o te Wai or the Treaty under the wider Policy.
Was the decision to include the vegetable exemption unreasonable?
The Court held the exemption was not unreasonable, as the decision was both reasonably available to the Minister and supported by evidence. The permissive nature of the exemption and its time-bound nature reflected that ongoing work was required to balance the interests of vegetable production and protection of waterways. Both Muaūpoko and Raukawa would continue to be involved in this process.
Result
The Court dismissed the applications for judicial review, and held the vegetable exemption was neither unlawful nor unreasonable.
For further information, please contact Director Brigitte Morten.
