High Court Rules on ECan’s Discharge Practices Amid Nitrate Crisis

The High Court of New Zealand has ruled that Environment Canterbury (ECan) made an error in allowing farms to discharge nitrates and other pollutants into waterways without the necessary resource consents. This decision highlights concerns over rising nitrate levels in the region’s water systems, which pose significant risks to both human and environmental health.

The ruling, released on March 15, 2024, stems from a challenge by the Environmental Law Initiative (ELI), which sought to quash a regional plan rule classifying certain nutrient discharges from farming as permitted activities. The court found that too much time had elapsed since the plan’s implementation to mandate immediate changes.

Dr. Matt Hall, research and legal director at ELI, emphasized that the council’s rule-making failed to comply with the Resource Management Act (RMA), a critical piece of legislation designed to protect New Zealand’s waterways. Justice Mander noted that ECan did not adequately consider the potential adverse effects of nutrient discharges on aquatic life, as required by section 70 of the RMA.

Implications of the Court’s Findings

The specific rule in question, known as rule 5.63 (Incidental Nutrient Discharges), has facilitated ongoing intensive farming practices even as nitrate pollution has escalated in Canterbury. Hall argued that this rule not only breached the RMA but also undermined essential safeguards by permitting discharges without sufficient evidence that they would not exceed minimum pollution standards. This oversight has led to heightened pollution levels in already stressed catchments.

The court’s decision confirmed that ECan had not demonstrated compliance with the legal requirements of the RMA. Justice Mander pointed out that during the hearings for the regional plan, the council had been alerted to serious concerns raised by expert witnesses regarding the health of local waterways. Despite this, ECan failed to address these issues adequately.

Systemic Failures and Accountability

Hall described the ruling as “extremely concerning,” indicating that ECan’s planning process has faced scrutiny in multiple cases. Last year, the High Court invalidated a discharge consent for the Ashburton Lyndhurst Irrigation Ltd (ALIL) scheme, and earlier this year, it identified a material error of law in a consent granted to the Mayfield Hinds Valletta (MHV) irrigation scheme.

The ruling underscores a troubling pattern of ECan’s decision-making processes, which appear to reflect systemic failings in achieving desired environmental outcomes. Hall remarked that the court’s finding serves as a crucial reminder for ECan to fulfill its statutory responsibilities as a regulatory body.

While the court’s ruling indicated that ECan failed to consider the RMA adequately, it also noted a procedural limitation. According to section 83 of the RMA, challenges to a regional plan must be made within three months of its operative date. As such, the court deemed that too much time had passed since the plan’s approval, which was nearly twelve years ago.

Hall pointed out that despite the age of the rule, it remains integral to the current nitrate crisis affecting residents across Canterbury. He expressed concern that the law as it stands may prevent necessary challenges to regulations that have clear legal deficiencies.

ECan defended its position by stating that any changes to the rule could have considerable repercussions for farmers who rely on it, potentially requiring them to undergo lengthy and costly resource consent processes. The council asserted that there was “no evidence” linking the rule to environmental damage, and neither party could ascertain how many individuals would be affected, since current practices do not require consent for nutrient discharges.

In his ruling, Justice Mander acknowledged that while section 83 barred ELI’s challenge, the case revolved around an administrative decision made over a decade ago within a complex regulatory framework that has since evolved.

Hall emphasized the necessity of enforcing regulatory limits to address the ecological realities in Canterbury. He stressed the importance of holding regulators accountable and ensuring the implementation of existing laws to protect vital environmental resources.

According to the latest data from Stats NZ, Canterbury possesses the highest amount of irrigated agricultural land in the country, covering 480,000 hectares, and is responsible for 70 percent of New Zealand’s total dairy farming irrigation. Recent groundwater testing conducted by the council revealed increasing nitrate levels in 62 percent of 300 test wells.

In September, the council narrowly voted to declare a nitrate emergency, underscoring the urgency of addressing this pressing environmental issue. As the situation develops, the implications of the High Court’s ruling will continue to resonate throughout the region and its agricultural practices.