Canterbury’s rivers deserve better than ‘quick and dirty’

Friday, 25 October 2024

The Ashburton River/Hakatere is one of the lowland Canterbury waterways which are “already degraded, commonly by pollution allowed from large areas of intensive farming”, Anna Sintenie writes.

Anna Sintenie is the Environmental Law Initiative’s senior researcher

OPINION: A generation ago, nitrate pollution, mostly from surrounding farms, was increasing and degrading the water quality of Lake Taupō. In response, the Government got in behind the Waikato Regional Council’s plan to control pollution. Now the water quality is generally regarded as excellent.

This is a success story, which ultimately maintained and improved freshwater quality – as is intended by the Resource Management Act. The situation in Canterbury is anything but this.

Many of Canterbury’s lowland waterways are already degraded, commonly by pollution allowed from large areas of intensive farming. This is the predicament of many lowland rivers, such as the Ashburton River/Hakatere.

This week, the Government weakened key provisions of the Resource Management Act, meaning more pollution into rivers, lakes, wetlands and estuaries nationwide - such as nitrate from cow urine - is suddenly allowable.

This Is a disaster for our unique aquatic ecosystems and for efforts to make them healthy enough for our tamariki to enjoy once again.

Reuben Smillie filmed discharge from Lake Opuha into the Kakahu River in March 2022. The Smillies and their neighbours say the river has been killed by polluted water from Lake Opuha since the irrigation scheme was consented.

These law changes have been rushed through, without any public input or scrutiny.

Water is a public good. No one has the right to pour contaminants into water, or, onto land where it could leach into water. People must first be “expressly allowed”. Regional councils are responsible for this.

If councils plan to allow discharges, they have two tools available. They can introduce rules for specified discharge activities to be permitted in their Regional Plan (generally appropriate for low-risk activities).

Alternatively, councils can use resource consents. These allow discharges on a case-by-case basis for a set term (1-35 years), with tailored conditions.

Importantly, for both tools, councils can only allow discharges that will not breach certain minimum water quality standards.

Before introducing a permitted activity rule, councils must be satisfied that specified effects (such as significant adverse effects on aquatic life) are not likely to result. Similarly, under section 107, (as it was until now), a council could not issue a consent for a discharge, if, once mixed, it would be likely to give rise to those same effects.

Lake Taupō is a success story about pollution control and improved freshwater quality, but the situation in Canterbury is nothing like that, writes Anna Sintenie.

The few exceptions where councils can issue consents which cross these minimum standards are: exceptional circumstances, where discharge is temporary, or when the discharge is part of necessary maintenance works. But, for the first time in RMA history, Parliament has expanded the exceptions, risking the clarity and integrity of the minimum standards, in the very waterways where pollution is causing significant effects on aquatic life.

This comes following a recent High Court case taken by the Environmental Law Initiative (ELI). Here is what happened.

Concerned by the already polluted state of the Hakatere river and hāpua, ELI applied for judicial review of ECan’s decision to grant a discharge consent to Ashburton Lyndhurst Irrigation Ltd (ALIL).

ALIL’s participating farms collectively cover over 33,000 hectares between the Hakatere and Rakaia Rivers on the Canterbury plains. ELI challenged Ecan’s decision to allow the discharge of nutrients from farming activities, particularly excess nitrogen wasted to groundwater, from intensive agriculture such as dairying.

The case was heard in May 2023. In March this year, the High Court found in ELI’s favour; the Council’s decision to grant the resource consent was based on a material error of law.

Justice Mander highlighted that “the past and current land use practices of the irrigation scheme were found by the Commissioner to have contributed to significant adverse cumulative effects on the lower reaches of the Hakatere/Ashburton River and hāpua, and specifically on the aquatic life of that particular area.”

The High Court revoked the unlawfully issued consent and directed ECan to rehear ALIL’s application, this time with proper regard to s107. The decision has been appealed by ECan and ALIL.

‘Big farm’ lobbyists wrote to ministers almost immediately, and by August, the coalition Government announced it would amend s107.

However, instead of usual parliamentary process, the law change slipped into an existing Bill already at select committee stage: the Resource Management Freshwater (and Other Matters) Amendment Bill. This meant the amendment progressed without consultation, Treaty impact analysis, or even submissions.

RMA Reform Minister Chris Bishop slipped up by referring to amendments added to a Bill already referred to select committee as “quick and dirty”, writes Anna Sintenie.

A last-minute add-on to Parliament’s Primary Production Select Committee report, shows the change was instead made on request by “several primary industry submitters”.

At second reading, RMA reform Minister Chris Bishop commended the amendments. He called them “quick and dirty”.

By this means, the Government completely evaded usual law-making process, removing any opportunity for the public to have a say. Not only has the Government expanded scope for consents to pollute, outside of minimum standards, but it is also undermining democratic law-making.

To protect the health of our waterways for generations to come, we need leadership from Government and councils, which recognises that pollution cannot be papered over by changing laws. It is either there or it is not. We would do well to learn from the successes of Lake Taupō.