Precautionary Principle Vs Erring for “Economic Wellbeing”

Thinking about cumulative effects, and the duties to avoid these in terms of the RMA. Here is the relevant bit of the RMA:

...the term effect includes … any cumulative effect which arises over time or in combination with other effects — regardless of the scale, intensity, duration, or frequency of the effect…

So I guess what that means, in terms of the purpose of the RMA, is that the general duty to avoid, remedy or mitigate adverse effects on the environment, includes a general duty to avoid, remedy or mitigate adverse cumulative effects on the environment.

The RMA definition relating to “cumulative effects” is “irrespective of scale and duration…”. I read – “irrespective of scale” – as meaning it doesn’t matter if the effect is “less than minor”, “minor”, “de-minimus”. When plugged into the RMA’s purpose, the word “adverse” is added. So that makes it a bit tricky.

However, it is acknowledged by all parties it appears – that there will be effects from the disposal of fill that contains contaminants not already associated with what was in the quarry at Three Kings. Natural basalt and scoria.

Got me thinking about Auckland’s underground rivers.

What do we know for sure. Undisputed facts:

• We know that many rivers in New Zealand have been badly damaged because of the cumulative effects of farming in their catchments. The root cause of this damage is a mix of agricultural chemicals and farm animal effluent (almost wrote farmer affluent).


• The responsible regulatory authority in every case is a Regional Council. (Or Unitary Authority where that has replaced the Regional Council).


• Regional Council responsibilities include: monitoring the state of rivers; granting consents that affect rivers; monitoring the effects of consented activities and compliance with conditions and carrying out enforcement.


• The legislation which is there to protect rivers from adverse effects, and which prescribes the activities of both farmers and Regional Councils is the Resource Management Act.

So where is the systemic failure? Why are rivers getting worse and not better, or even staying the same (intrinsic values, ecosystems, etc etc). There are various other opinions and processes which are worth summarising:

• Even if farming as we know it was stopped in its tracks, leachate already in the ground would maintain the contaminant flow into rivers for a decade or two.


• There are hopes in a few minds that some sort of water allocation scheme will sort out the problem – ie that some sort of organised market will be the stone that kills the two birds of river pollution and getting the best use out of river water.


• There is huge pressure to convert more relatively low impact sheep farms to dairy farms – irrigated by takes from rivers that many claim are under stress already.

I think the systemic failure fundamentally arises because the regulators either don’t or can’t do their job in accordance with the environmental and ecological protection principles that are written into the Resource Management Act.

What I see in the Environment Court – time after time, when legal action is provoked – are the applicant’s technical experts strenuously and scientifically trying to “prove” that the adverse effects from the applicant’s proposed activity will be less than minor. And yet as even the most rudimentary knowledge of science will tell you, the problems that are at issue (pollution of commons like rivers, lakes, estuaries, seas, atmospheres…) are not described perfectly and analytically by any known scientific methods. At best science suggests probabilities that are riddled with uncertainties and gaps in assumptions, and at worst expert scientific evidence is sophistry designed to support the applicant’s project.

It appears that Environment Court Judges are generally keenly aware of this. Because they are aware, it appears to me that they really have only one option open to them. The Environment Court needs to:

Place great focus on Regional Council evidence relating to the ability of the commons at issue to handle the “less than minor” effects of the application; AND, use the hearing to fully explore the regulator’s processes and track-record in regard to the effects and resource at issue (by using the Court’s powers to obtain independent advice); AND, where there is a question-mark over whether granting the application will potentially damage the resource’s ability to meet the needs of future generations, then decline it by citing the precautionary principle.

I think this sort of Environment Court process would begin to deliver the “cumulative effects” aspiration of the Resource Management Act. The duty to avoid cumulative effects, is actually down to the Environment Court.

The Fletcher/Winstone “cleanfill” application is a classic example.

In my opinion the ARC/Auckland Council has paid very little attention to the state of Auckland’s underground rivers. Its evidence and related reporting did not provide information about other sources of contaminants that either are affecting, or have the potential to affect the quality of that resource. (Including road runoff, stormwater systems, leaking sewer systems, leachate from contaminated soils – residential and commercial, saline intrusion). ARC contaminant monitoring information appeared limited. Contaminants listed in relevant schedules appear out of date. This regulatory environment is an open-door policy for further cumulative effects.

I hold that where there is the potential for cumulative effects, then it is the Environment Court’s duty to scrutinise the combined effects of the activity applied for and the regulatory environment. And then – if necessary – impose a moratorium on future new activities until the relevant regulatory environment has caught up with its duties.