When the National Environmental Standards for Freshwater (NES-F) were passed in 2020, the wetland provisions felt like a hospital pass of a hand grenade to the quarrying and mining industry. By Mike Doesburg, Partner, and Emma Burns, lawyer at Wynn Williams.
The NES-F now seems like a minefield, which is a better analogy; a single misstep can have grave consequences.
The Court of Appeal’s recent decision in Page v Greater Wellington Regional Council [2024] NZCA 51 provides another example of what can go wrong for councils taking enforcement action under the NES-F. It also highlights how difficult it is to answer the question: “Is this a wetland?”
Facts
In 2021, Mr Page and Ms Crosbie were convicted of 35 offences under the Resource Management Act 1991 (RMA) in relation to a parcel of land in the Nikau Valley in the Kapiti District. The land had been farmed until 2000, at which point it was developed into lifestyle properties. Ms Crosbie purchased the land in 2019, after which livestock were reintroduced and extensive land development was undertaken by Mr Page. This included constructing access tracks, stream crossings and the reclamation of four areas alleged by the Greater Wellington Regional Council (GWRC or Council) to be wetlands.
Following an investigation, the GWRC brought charges against Mr Page and Ms Crosbie ranging from; allowing cattle to access wetlands; disturbing wetlands; undertaking earthworks in water bodies; depositing substances into water; and taking water and depositing soil into a riverbed. Most of the charges related to the existence of a “natural wetland” or “significant natural wetland” under the proposed Natural Resources Plan (pNRP).
Mr Page and Ms Crosbie represented themselves in the District Court, did not call any expert evidence to challenge the GWRC’s case and were convicted. They went on to unsuccessfully represent themselves on appeal to the High Court, which confirmed the District Court’s decision. As a result, Mr Page was sentenced to three months’ imprisonment and Ms Crosbie was fined $118,750.
Supported by legal representation, Mr Page and Ms Crosbie were granted leave to appeal to the Court of Appeal against 29 of the 35 charges. The absence of any expert evidence at trial raised a material risk that the appellants had suffered a miscarriage of justice. The appellants were granted leave to admit ecology and hydrology evidence in the Court of Appeal to which the Council filed reply evidence.
The Court of Appeal focused on whether the GWRC had proved, beyond the criminal standard of reasonable doubt, that the areas at issue were “wetlands” for the purposes of the RMA, or “natural wetlands” or “significant natural wetlands” for the purposes of the pNRP. There were two hurdles for the Council – a definitional one (whether the areas met the relevant definitions of a wetland) and exemptions (if the areas were wetlands and whether the areas met any of the relevant exemptions).
Wetlands and the fallible “Clarkson Method”
On the issue of definition, the pNRP incorporates the RMA definition of “wetland” into its definition of “natural wetland”. The result is that a “natural wetland” is “a permanently or intermittently wet area, shallow water and later water margin that supports a natural ecosystem of plants and animals that are adapted to wet conditions.”
The Council failed to establish to the Court’s satisfaction the second element of the definition: the presence of animals specifically adapted to wet conditions in the areas alleged to be wetlands. The Court reasoned that if this element had not been proven to the criminal standard in respect of any area, a miscarriage of justice was inevitable.
The Court was critical of the Council’s reliance on the “Clarkson Method” to prove the existence of a “natural wetland”. The key problem with the Clarkson Method (derived from the US Army Corps Manual methodology) is that it is a vegetation-based tool blind to the reality that a “natural wetland” under the pNRP is contingent on proof of a natural ecosytem adapted to plants and animals.
Fatally for the GWRC, the US Army Corps Manual directs that in “atypical circumstances”, including cases of likely or pending litigation, plants, soils and hydrology must be assessed. These three environmental criteria should be at the fore. A vegetative tool is unlikely to meet the criminal standard of proof absent evidence on a more “robust” approach inclusive of hydrology and soils.
Considering the expert evidence in totality, no fauna observations were made at the time of the Council’s initial investigations, nor had they been subsequently. Even allowing for additional evidence, the Council had not established the existence of fauna adapted to wet conditions in any of the alleged wetlands other than in one open water pond.
The damp gully head exemption and stock watering exemption
The Council had to prove that no exemption under the pNRP definition applied to the identification of a wetland. The Council had to prove that the stock watering exemption did not apply to one area and the damp gully head exemption did not apply to others.
Although the Council failed to meet the definitional hurdle for some areas, for completeness the Court considered the damp gully head exemption. The Court criticised the exclusion as an elusive provision, given the distinction between “damp” and “wet” is often hard to define – damp areas may be periodically wet or inundated. The Court found this to be a particularly problematic provision when a potential prison sentence is at stake.
“Owners of properties containing gully heads and into which water periodically flows or seeps should, in our view, and by reference to some better metric, be able to determine whether grazing and/or works are possible in such areas, certainly when facing the prospect of prison terms.”
On the stock watering exemption, the Court considered that to “maintain” a water storage pond required only that it did not leak. Under the pRNP, a “natural wetland” does not include water storage ponds for the purpose of stock watering. As a stock watering exemption was established, a miscarriage of justice had resulted.
Outcome
The Court of Appeal set aside all 29 of the contested convictions. The Court requested the parties file submissions in March and April 2024 on the sentence that ought to have been imposed for the six uncontested convictions (with a provisional indication that a $57,000 fine plus costs may be appropriate).
Comment
In this case, the Council, Mr Page and Ms Crosbie all failed to navigate the minefield that is wetland provisions, resulting in Mr Page and Ms Crosbie suffering the damage of a false sentence.
This case must be seen as a cry for clarity and certainty under the NES-F (and any similar plan provisions) on appropriate methods for identifying wetlands such that new extractive industries can be established and existing sites expanded without arbitrary enforcement action.
The Court’s dissection of the definitional and evidential requirements might be the final push needed to spur a revisit of the NES-F or perhaps even the RMA definition of wetland. This case shows that subscribing to certain ecological tools (like the Clarkson Method) can only remove so many mines when lacklustre drafting remains.
Those involved in the quarrying and mining industry should know that the Courts now expect a robust, holistic use of ecological methods before satisfying themselves that the expert evidence establishes a wetland.
Those looking to establish or expand existing operations in suspected wetland areas should take a comprehensive approach, particularly where such sites can be described as “atypical”.
