The principles set out in the King Salmon[1] Supreme Court decision have been the subject of ongoing litigation, most recently in the case of Port Otago Limited v Environmental Defence Society [2023] NZSC 112. The Supreme Court recently issued its decision[2] in relation to an appeal concerning the relationship between Policy 9 (Ports Policy) and Policies 11, 13 and 15 addressing indigenous biodiversity, natural character and natural features and landscapes (Avoidance Policies) of the New Zealand Coastal Policy Statement 2010 (NZCPS).
Issue
The Avoidance Policies require adverse effects to be “avoided” in the following situations:
- on indigenous biodiversity of certain high standards;
- in areas of outstanding natural character; and
- in areas of outstanding natural features or landscapes.
The Ports Policy “…requires an efficient national network of safe ports, servicing national and international shipping…”.
The issue in these proceedings was whether a proposed regional policy statement put forward by Otago Regional Council gives effect to that requirement, by providing that adverse effects in such areas have the option of being either “avoided, remedied or mitigated”.
Court of Appeal Decision
In applying the principles set out in the King Salmon case, the Court of Appeal held that the Ports Policy was subordinate to the Avoidance Policies.[3] It concluded that the Avoidance Policies created an absolute prohibition on Port Otago breaching the values protected by the Avoidance Policies, including by not allowing Port Otago to remedy or mitigate adverse effects.[4]
Port Otago appealed the Court of Appeal’s decision to the Supreme Court.
Supreme Court Decision
Potential for conflicts
The Supreme Court held that the Court of Appeal erred in finding that the Ports Policy was subordinate to the Avoidance Polices. It found that the Ports Policy and the Avoidance Policies all contain directive language (such as “requires” an efficient national network of safe ports in the Ports Policy and “avoid” adverse effects in the Avoidance Policies) and that there was potential for the policies to conflict with one another, for example where measures may be needed for the safe and efficient operation of an established port that cannot avoid adverse effects on the environment.[5]
Meaning of ‘avoid’
The Supreme Court held that the avoidance policies in the NZCPS must be interpreted in light of what is sought to be protected and when considering any development, whether measures can be put in place to avoid material harm to those values and areas.[6]
The Court clarified that the meaning of ‘avoid’ arising from the King Salmon decision does not prohibit minor or transitory effects where the prohibition of those effects would likely not be necessary to preserve the characteristic of the environment in question.[7] Referring to the Trans-Tasman[8] decision, the Supreme Court also clarified that concepts of remediation and mitigation may meet the “avoid” standard by bringing the level of harm down such that material harm is avoided.[9]
Approach to resolving conflicts
The Court provided some general guidance as to how a decision-maker at the resource consent level might approach the reconciliation of conflict between the Ports Policy and the Avoidance Policies. In summary, the decision-maker would have to be satisfied that:[10]
- the work is required (and not merely desirable) for the safe and efficient operation of the ports;
- if the work is required, all options for dealing with these safety or efficiency needs have been evaluated and, where possible, the option chosen should not breach the avoidance policies; and
- where a breach of the avoidance policies is unable to be averted, the conflict should be narrowed so that any breach is only to the extent required to provide for the safe and efficient operation of the ports.
Therefore, even where the option chosen encroaches on the avoidance policies only to the extent necessary for the safe and efficient operation of the ports, this does not mean that a resource consent would necessarily be granted.
We consider the Supreme Court decision provides helpful and sensible clarity for the interpretation of directive higher order documents including (but in recent times certainly not limited to) the NZCPS.
_________________
[1] Environmental Defence Society Inc v New Zealand King Salmon Company Ltd [2013] NZSC 101.
[2] Port Otago Limited v Environmental Defence Society [2023] NZSC 112.
[3] Port Otago Limited v Environmental Defence Society [2021] NZCA 638 at [81].
[4] Above, n2 at [87].
[5] Above, n 1 at [71].
[6] Above, n 1 at [68].
[7] Above, n 1 at [64].
[8] Trans-Tasman Resources Limited v Taranaki-Whanganui Conservation Board [2021] NZSC 127.
[9] Above, n 1 at [64] – [67].
[10] Above n 1 at [76].
