Latest from the High Court on no individual loss bottom lines

The High Court in Oceana Gold (New Zealand) Ltd v Otago Regional Council [2020] NZHC 436 recently determined Oceana Gold’s appeal of the Environment Court decision relating to Policy 5.4.6(c) of the Proposed Otago Regional Policy Statement (PRPS).

Policy 5.4.6(c) proposes a bottom line as to what can and cannot be offset in a biological diversity context.  Specifically, the policy addresses the argument that some elements of biodiversity are so irreplaceable or vulnerable that the risk of their not being adequately offset is too high, and unacceptable impacts should not be provided for – even where an offset is considered to be achievable.  The Environment Court amended the policy (as underlined) to read:

The offset ensures there is no loss of individuals of rare or vulnerable species as defined in reports published prior to 14 January 2019 under the New Zealand Threat Classification System (NZTCS).

The amended policy would set an extremely high threshold for a bottom line that if an activity will result in the loss of any individuals of a rare or vulnerable species as identified under the NZTCS it cannot be offset, even if an offset is achievable.  Oceana appealed the Environment Court’s drafting of this policy to the High Court on seven grounds, one of which was successful.

The successful ground of appeal dealt with the reference to a definition in the NZTCS of “rare or vulnerable species”.  The High Court accepted the Environment Court made an error of law to require the policy to have reference to a definition that did not exist within the NZTCS.  The appeal was allowed and the policy was remitted back to the Environment Court for amendment to render it workable.

The unsuccessful appeal grounds included failing to consider the relationship between offsetting the in the PRPS and relevant provisions in the Resource Management Act 1991 (Act), breach of natural justice, the conclusion reached by the Environment Court was unsupported by evidence, evidence put forward by Oceana was ignored and that the Environment Court failed to consider alternatives and make appropriate risk assessments as required under the Act.

With regard to the ‘unsupported by evidence’ ground the High Court found that the Environment Court came to its decision (of inserting the word ‘individual’) on the basis of the evidence presented and by the Court’s experience as a specialist tribunal.  In our view this is a surprising finding given that the ecology expert witnesses, while varying in their views of what the appropriate level of loss was, were united in their conclusion that the appropriate level of loss to be protected was not the loss of an individual specimen of rare or vulnerable species.  The High Court’s position that the Environment Court can look beyond expert ecological evidence and make its own conclusions is quite different to the usual approach we see from the Environment Court regarding the testing and support of evidential positions.

Further, it is our view that as the Act is an effects-based statute a key consideration needs to be the effect of a loss of an individual on a particular species.  For example, where the loss of an individual might affect the viability of a population as a whole then it may be an appropriate bottom-line, but that may not always be the case.  In that regard, it may be that the redrafting by the Environment Court includes more specificity, as not all rare or vulnerable species will face viability effects with the loss of one specimen.

Resource Management team

Josh Leckie, Annabel Linterman, Kelsey Barry, Mia Turner

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