MINISTER OF CONSERVATION v MANGAWHAI HARBOUR RESTORATION SOCIETY INCORPORATED [2021] NZHC 3113

MINISTER OF CONSERVATION v MANGAWHAI HARBOUR RESTORATION SOCIETYINCORPORATED [2021] NZHC 3113 [18 November 2021]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECIV 2021-488-24CIV 2021-488-26[2021] NZHC 3113UNDER Section 299 of the Resource ManagementAct 1991IN THE MATTER OF An appeal against a declaration of theEnvironment Court pursuant to s 310 of theResource Management Act 1991BETWEEN MINISTER OF CONSERVATIONFirst AppellantROYAL FOREST AND BIRDPROTECTION SOCIETY OF NEWZEALAND INCORFORATEDSecond AppellantContinuedHearing: 6 September 2021 (by VMR)Appearances: E Lay and M Downing for the first appellantS R Gepp and E H F Toleman for the second appellantK R M Littlejohn and G E Gamboni for the respondentM J Doesburg for the interested partyJudgment: 18 November 2021JUDGMENT OF CAMPBELL JThis judgment was delivered by me on 18 November 2021 at 3:00 pm pursuant to Rule 11.5of the High Court RulesRegistrar/Deputy RegistrarAND MANGAWHAI HARBOURRESTORATION SOCIETYINCORPORATEDRespondentNORTHLAND REGIONAL COUNCILInterested PartyIntroduction[1] The Resource Management (National Environmental Standards forFreshwater) Regulations 2020 (the Freshwater Standards) prescribe nationalenvironmental standards for freshwater. Among other things, the FreshwaterStandards set out conditions under which activities can be undertaken within or neara "natural wetland".[2] Under the Freshwater Standards, "natural wetland" has the meaning given bythe National Policy Statement for Freshwater Management 2020 (the FreshwaterPolicy Statement). The Freshwater Policy Statement defines "natural wetland" byusing the definition of "wetland" in the Resource Management Act 1991 (the RMA),subject to three exclusions. The RMA says a wetland "includes permanently orintermittently wet areas, shallow water, and land water margins that support a naturalecosystem of plants and animals that are adapted to wet conditions". This is a broaddefinition. It includes a wetland located in the coastal marine area (the CMA).[3] The Freshwater Policy Statement also has a definition of "natural inlandwetland". This means a natural wetland that is not in the CMA. The FreshwaterStandards, when describing their scope of application, do not use this narrowerdefinition.[4] The Environment Court was hearing appeals from the Northland RegionalCouncil's decision on a proposed regional plan. In the course of hearing those appeals,an issue arose as to whether the Freshwater Standards apply to wetlands in the CMA.[5] The Court held that the Freshwater Standards apply to the CMA to only alimited extent – namely, to that part of the CMA upstream of any river mouth.1[6] The Minister of Conservation and the Royal Forest and Bird Protection Societyof New Zealand appeal against the Environment Court's decision. They say theFreshwater Standards apply to natural wetlands in the entirety of the CMA – not just1 Bay of Islands Maritime Park Inc v Northland Regional Council [2021] NZEnvC 6.in that part of the CMA upstream of any river mouth. The Mangawhai HarbourRestoration Society and the Northland Regional Council largely support theEnvironment Court's decision.The statutory framework: an overview of the RMA2Resource consents[7] The RMA creates six classes of activity. From least to most restricted they arepermitted activities, controlled activities, restricted discretionary activities,discretionary activities, non-complying activities and prohibited activities.3National, regional and district planning documents[8] Under part 5 of the RMA, there is a three-tiered resource management system– national, regional and district – with an associated hierarchy of planning documents.[9] Central government is responsible for national direction. This direction ismade through national environmental standards,4 national policy statements,5 NewZealand coastal policy statements6 and national planning standards.7National environmental standards[10] National environment standards are in the form of regulations made under s 43of the RMA. National environmental standards prescribe technical standards, methodsor requirements for land use and subdivision, use of the CMA and of the beds of lakesand rivers, water take and use, or discharges of contaminants.8 Among other things,national environmental standards may prohibit activities or make them non-complying, discretionary, restricted discretionary, controlled or permitted. Nationalenvironmental standards may also restrict the making of rules or the granting of2 This is adapted from the Supreme Court's overview in Environmental Defence Society Inc v TheNew Zealand King Salmon Co Ltd [2014] NZSC 38, [2014] 1 NZLR 593 at [10]–[14].3 RMA, s 87A.4 RMA, ss 43–44A.5 RMA, ss 45–55.6 RMA, ss 56–58A.7 RMA, ss 58B–58J.8 RMA, s 43(1)(a), referencing ss 9 and 11–15.consent for specified matters, or require a person to obtain a certificate stating that anactivity complies with a term or condition imposed by national environmentalstandards.9[11] National environmental standards are binding and prevail over rules in regionalplans and district plans, unless the national environmental standards expressly sayotherwise.10 Where a local authority's plan or proposed plan duplicates or conflictswith a provision in a national environmental standard, the plan or proposed plan mustbe amended without using the standard process in sch 1 of the RMA for preparingplans.11National policy statements[12] The purpose of national policy statements is to state objectives and policies formatters of national significance that are relevant to achieving the purposes of theRMA.12 The purpose of the New Zealand coastal policy statement (the Coastal PolicyStatement) is to state objectives and policies in order to achieve the purpose of theRMA in relation to the coastal environment of New Zealand.13 Lower order planningdocuments (regional policy statements, regional plans and district plans) are requiredto give effect to national policy statements and the Coastal Policy Statement.14Regional and district planning documents[13] Regional councils and unitary councils are responsible for regional policystatements and regional plans. There must be a regional policy statement and at leastone regional coastal plan (approved by the Minister of Conservation) for each region.15[14] Territorial authorities (district and city councils) are responsible for districtplans. There must be one district plan for each district.169 RMA, s 43A.10 RMA, s 43B.11 RMA, s 44A.12 RMA, s 45.13 RMA, s 56.14 RMA, ss 55, 62(3), 67(3) and 75(3).15 RMA, ss 60 and 64.16 RMA, s 73.The process for preparing regional and district planning documents[15] Local authorities must prepare regional policy statements, regional plans anddistrict plans in the manner set out in sch 1 of the RMA.17 Schedule 1 requiresconsultation with tangata whenua and others, followed by public notice and a call forsubmissions.18 The local authority then holds a hearing before notifying its decisionand reasons.[16] Submitters can appeal the local authority's decision to the EnvironmentCourt.19 On any appeal the Environment Court has the same power, duty anddiscretion as the local authority whose decision is under appeal.20 The EnvironmentCourt may confirm, amend or cancel the decision to which the appeal relates and maydirect the local authority to prepare changes to the proposed policy statement or plan.21A party to the appeal may appeal on a question of law to this Court against any decisionof the Environment Court.22The freshwater planning process[17] The Resource Management Amendment Act 2020 introduced, on 1 July 2020,a freshwater planning process (the freshwater planning process) for freshwatermanagement by regional councils. The freshwater planning process streamlinesdecisions for freshwater plans by establishing independent freshwater hearing panelswith enhanced powers and by limiting appeal rights to the Environment Court.23[18] The effect of s 80A of the RMA is that where only part of a plan relates tofreshwater, a regional council must use the freshwater planning process for those partsthat relate to freshwater and the standard sch 1 process for the balance.17 RMA, ss 60, 64, 65 and 73.18 RMA, sch 1, cls 3 and 5.19 RMA, sch 1, cls 8B, 9, 10, 11 and 14.20 RMA, s 290.21 RMA, ss 290 and 293.22 RMA, s 299.23 RMA, sch 1, part 4.The Freshwater Standards[19] The Freshwater Standards came into force on 3 September 2020, at the sametime as the new Freshwater Policy Statement and new Stock Exclusion Regulations.24[20] The Freshwater Standards have four parts, of which parts 2 and 3 aresubstantive. Part 2 sets standards for farming activities. Part 3 sets standards for otheractivities that relate to freshwater, and is in three subparts:(a) Subpart 1 sets out the conditions under which certain activities can beundertaken within or near natural wetlands. These activities includevegetation clearance, earthworks and the taking, use and discharge ofwater. It classifies these activities variously as permitted, restricteddiscretionary, discretionary, non-complying and prohibited.(b) Subpart 2 contains one regulation, providing that reclamation of the bedof any river is a discretionary activity.(c) Subpart 3 deals with the effects on the passage of fish of the placement,use, alteration, extension or reconstruction of certain structures in, on,over, or under the bed of any "river or connected area".25The Proposed Regional Plan for Northland[21] Northland Regional Council (the Council) notified the proposed regional planfor Northland (the proposed Plan) in September 2017. A hearing followed in 2018.The Council's decision was notified in May 2019. A total of 23 appeals were lodgedin the Environment Court, including by the Minister of Conservation.[22] During the hearing of the appeals before the Environment Court, theconsequences of the Freshwater Standards on the proposed Plan's provisions relatingto mangrove removal and set-backs from wetlands became apparent. TheEnvironment Court explained:2624 Resource Management (Stock Exclusion) Regulations 2020.25 Freshwater Standards, reg 58.26 Bay of Islands Maritime Park Inc v Northland Regional Council [2021] NZEnvC 6 at [3].The issues arise because "natural wetlands" are defined in the National PolicyStatement for Freshwater Management 2020 (NPS-FM-2020) with anaccompanying definition for "natural inland wetlands". These definitionsmake it clear that the latter exclude areas within the CMA. The [FreshwaterStandards] adopts the [Freshwater Policy Statement]'s definition of "naturalwetlands" but makes no such excision of the CMA from its jurisdiction. Itrefers only to "natural wetlands", such that [the Freshwater Standards]arguably may apply to both freshwater wetlands and wetlands in the CMA.[23] As this had not been considered by the Environment Court or the parties, theCourt invited further submissions and held a hearing as to the scope of the FreshwaterStandards.The Environment Court decision[24] An affidavit from an expert on wetlands, Dr Phillipe Gerbeaux, was filed forthe hearing. No party disputed the contents of the affidavit. The Court said DrGerbeaux adopted a position, accepted by all parties, that "natural wetlands" includethose in freshwater, those in freshwater areas subject to varying degrees of salineintrusion, and those within the CMA itself. Dr Gerbeaux said that essentially any areasupporting vegetation that can be fully or partially covered by water is a wetland. DrGerbeaux left open the question whether areas in the CMA that are permanently oroften under water, such as eel grass beds in most New Zealand harbours, alsoconstitute wetlands.27[25] The Court said the Freshwater Standards were, with the Freshwater PolicyStatement, a package "described by some as a freshwater initiative".28 The FreshwaterStandards were made under s 43 of the RMA. There was no dispute that regulationsunder s 43 could cover water generally, both freshwater and saltwater.[26] The Court referred to the process the Minister for the Environment hadfollowed in making the Freshwater Standards. The Court said that while that washappening the RMA was amended to establish a specific process for freshwaterplanning in s 80A. The Court said it was important to note that under s 80A a proposedregional plan does not include a proposed regional coastal plan.2927 At [8]–[9].28 At [11].29 At [17]–[19]. See RMA, s 80A(8).[27] The Court referred to the definitions of "freshwater" and "coastal water" in theRMA:freshwater or fresh water means all water except coastal water andgeothermal watercoastal water means seawater within the outer limits of the territorial sea andincludes—(a) seawater with a substantial fresh water component; and(b) seawater in estuaries, fiords, inlets, harbours, or embayments[28] The Court said it was in this context that the Freshwater Policy Statement andthe Freshwater Standards were promulgated. The Court then referred to the definitionsof "natural wetland" and "natural inland wetland" in the Freshwater PolicyStatement.30 As noted earlier, the latter means a natural wetland that is not in theCMA. The Court said that the provisions of the Freshwater Standards that deal withnatural wetlands make no reference to "natural inland wetlands". The Courtobserved:31In relation to any change in intent between the [Freshwater Policy Statement]and the [Freshwater Standards], the only significant indicator immediatelyavailable is the reference solely to natural wetlands rather than to naturalinland wetlands. It is this which is at the heart of the interpretive issue and thereason for this declaration.[29] The Court then analysed the Freshwater Policy Statement. It concluded that itwas the intent of the Freshwater Policy Statement to provide an integrated approachto freshwater management, but that:32The objective was not to subsume the entire environment including the CMAand land use within the purview of the freshwater regulations or freshwaterregime set up under s 80A. To do so would be anathema given the requirementto develop the regional plans and regional coastal plans separately to those forfreshwater.[30] The Court turned next to the Freshwater Standards. The Court said theFreshwater Standards did not state any specific purpose but the title of the regulations"does specifically identify freshwater and this may be indicative of an intent to cover30 At [21].31 At [24].32 At [32].only freshwater".33 The Court said of particular importance to its consideration of theintent and effect of the Freshwater Standards was the definition of "river or connectedarea":34river or connected area means—(a) a river; or(b) any part of the coastal marine area that is upstream from the mouth ofa river[31] The Court said this clearly included within the purview of the FreshwaterStandards any area of a river within the CMA upstream of the mouth of that river. TheCourt said there was "a distinction between this definition and that of coastal waters".The Court referred to the definitions of "coastal waters" and the CMA in the RMA.The Court said "coastal waters" includes "water within a river that has saline content,but which may or may not be within the CMA" and that the CMA includes not onlythe sea itself but that part of a river a distance either five times the width of the rivermouth or one kilometre upstream of the river mouth, whichever is the lesser.35[32] The Court's view was that the definition of "river and connected area" was"critical" to understanding the intent of the Freshwater Standards.36 This was becauseit was not possible to give an exact position for the limits of salt in freshwater. Thissituation created practical difficulties in ascertaining whether an area contains coastalwaters or is freshwater.37 The Court concluded that in promulgating "the freshwatermanagement provisions" the Ministry for the Environment "wanted to provide asmuch certainty as possible as to the areas that would be affected by the [FreshwaterStandards]".38[33] The mouth of the river, the Court said, was generally established byconsultation between the relevant regional council and the Ministry of Conservation.3933 At [33].34 At [35].35 At [37]–[38].36 At [39].37 At [40] and [41].38 At [44].39 This may have been intended to be a reference to the Ministry for the Environment.The Court said that by using the river mouth the Freshwater Standards "become morecertain as to their application". The Court explained:40The condition of the water above the river mouth, as defined, is not a matterthat requires particular evidence but rather is controlled by requirements ofthe [Freshwater Standards] and Freshwater Plans, while water below that pointforms part of the estuary, harbour or embayment and is therefore is controlledby other means, being the [Coastal Policy Statement] and regional coastalplan.[34] The Court noted that "natural wetlands include those both above the coastalmarine area ('natural inland wetlands' as defined in the [Freshwater Policy Statement])and below it".41 "Wetland" appeared to include areas of mangrove and seagrass andmight extend to seaweeds. These may inhabit the intertidal zone. The Court thoughtthat if such areas were to be regulated by the Freshwater Standards there would be thepotential for conflict with coastal plans or fisheries regulations.42[35] The Court then looked at the text of the Freshwater Standards. The FreshwaterStandards did not discuss mangrove or saltmarsh areas or the CMA explicitly, exceptwhen defining "river or connected area" and in a few regulations in part 2 (which dealswith standards for farming activities).43 The regulations relating to wetlands in part 3did not make reference to any particular characteristics of the CMA, such as tidalcycles or other issues that might affect activities within wetlands there.44[36] The Court acknowledged it was not possible to say that the lack of anydiscussion of mangroves, saltmarsh or the CMA determined whether activities inwetlands in the "coastal marine environment" were regulated by the FreshwaterStandards. But the Court felt able to say that "the [Freshwater Standards] follows the[Freshwater Policy Statement] and is concerned about freshwater impacts on receivingenvironments". While such receiving environments clearly included the CMA and thecoastal environment generally, the Court was not able to take from this that "activitiesin all natural wetlands are intended to be controlled by the [Freshwater Standards]".4540 At [45].41 At [46].42 At [48].43 At [50].44 At [53].45 At [55].[37] Although the titles to headings and paragraphs were not determinative, theyled the Court to the view that the concern of the Freshwater Standards was activitythat might occur on land rather than within the CMA. That is, the FreshwaterStandards sought to ensure that coastal waters were not inappropriately affected orcontaminated, but did not control activities within the CMA itself.46[38] The Court thought the drafting was not clear as to "the area of application" ofthe Freshwater Standards. The drafters may have intended to include at least someareas of the CMA within the Freshwater Standards. One clear example was thedefinition of "river or connected area", which includes any part of the CMA upstreamof a river mouth. No other clear examples could be determined from the FreshwaterStandards or the Freshwater Policy Statement "except the use of the term 'naturalwetlands'". If it had been intended that regulations generated for freshwater were toapply to all areas, including the CMA, "then this should have been made explicit".47The Environment Court's conclusion[39] The Court concluded the Freshwater Standards were not directed at the CMA.The Freshwater Standards only had regulatory effect upstream of the river mouth.Below that point, natural wetlands were included as part of the CMA and/or coastalwaters "and are controlled by regional coastal plans and the [Coastal Policy Statement]as appropriate".48 The Freshwater Standards were intended to apply to "all areas offreshwater and to rivers or connected areas".49[40] The Court's reasons for this conclusion were:50(a) If the Freshwater Standards had effect within the CMA, the FreshwaterStandards would be mandatory and would have significantconsequences on issues relating to marine areas and potentially underthe Fisheries Act 1996.46 At [56]–[57].47 At [58]–[59].48 At [60].49 At [62].50 At [61].(b) Freshwater planning instruments prepared under s 80A of the RMAwould not integrate directly with the area covered by regional plans.This would lead to issues as to how these would be implemented andenforced. Given the mandatory nature of the Freshwater Standards, theCourt "must construct them against the party which seeks to implementthem". The Government had to be clear that it wished to constrainactivities within all coastal waters as they relate to natural wetlands.(c) Given the number of wetlands in the CMA, this would be a significantimposition for management of much of the coastline.(d) The Freshwater Standards did not clearly indicate any intention tocontrol areas in the CMA. There was an "extension" in respect of"rivers or connected areas". The Court considered that for clarity thathad been utilised as a convenient and clear demarcation point.[41] The Court made three declarations:A: The Resource Management (National Environmental Standards forFreshwater) Regulations 2020 (NES-F/Regulations) apply to thecoastal marine area (CMA) only to the extent that they cover the areaof CMA upstream of the "river mouth" as defined in the ResourceManagement Act 1991. In particular, they do not apply to the generalCMA, open oceans, estuaries, bays and other areas not falling withinthe definition of "river or connected area".B: The Court is empowered to consider the Regional Plan provisionsaffecting those parts of the CMA not encompassed within thatdefinition in terms of the New Zealand Coastal Policy Statement(NZCPS) and other documents, without considering any constraintsimposed by virtue of the said NES-F.C: For those areas of the CMA that are covered within the definition of"rivers or connected areas" where the Regulations do apply, the NES-F will need to be considered in forming a view as to the mostappropriate provisions for those areas.Summary[42] In summary, the Court found that the Freshwater Standards apply to the CMAonly upstream of any river mouth. Although the focus of the decision was on the partof the Freshwater Standards dealing with natural wetlands (subpart 1 of part 3), theCourt's declarations were wider in scope, dealing with the application of the entiretyof the Freshwater Standards.Appeals[43] The Minister of Conservation (the Minister) and the Royal Forest and BirdProtection Society of New Zealand Inc (Forest and Bird) filed separate appealsagainst the Environment Court's decision. The Northland Regional Council (theCouncil) and the Mangawhai Harbour Restoration Society Inc (the Society) filednotices of intention to appear on each appeal. By consent, the two appeals wereconsolidated, the Society was substituted as the respondent and the Council wasnamed as an interested party under s 301 of the RMA.51[44] The Minister says the Environment Court was wrong to find that theFreshwater Standards apply to the CMA only upstream of any river mouth. TheMinister submits this Court should set aside all three declarations made by theEnvironment Court, and in substitution make two declarations:(a) The Freshwater Standards apply to the CMA to the extent that theFreshwater Standards cover activities affecting areas falling within therelevant definitions ("natural wetlands", "river or connected area" or"receiving environment"); and(b) The Environment Court is required to consider the proposed Plan inlight of the constraints imposed by virtue of the Freshwater Standards.[45] The declarations proposed by the Minister, like those made by the EnvironmentCourt, are declarations as to the application of the entirety of the Freshwater Standards.[46] Forest and Bird agrees with the Minister that the Environment Court erred infinding that the Freshwater Standards apply to the CMA only upstream of any rivermouth, and agrees that all three declarations made by the Court should be set aside.51 It is not clear to me why (given s 302 of the RMA) the Council was named merely as an interestedparty.Forest and Bird proposes that only one substitute declaration should be made, confinedto the part of the Freshwater Standards that deals with natural wetlands:(a) The Freshwater Standards apply to natural wetlands in the CMA.[47] The Society supports the Environment Court's decision, except in two respects.First, the Society says that the Freshwater Standards do not apply to any naturalwetlands in the CMA – not even to those in the CMA upstream of any river mouth.Secondly, the Society proposes that any declarations should only be in respect of theapplication of the part of the Freshwater Standards dealing with natural wetlands.[48] The Council says that if the Freshwater Standards apply to natural wetlands inthe CMA there will be implications for its proposed Plan for Northland. The Councilhas therefore maintained an interest in the appeal and has sought to be heard. TheCouncil says it supported the appellants in the Environment Court, but that it adopts a"more neutral" position on the appeal and presents submissions to assist the Court.Nonetheless, the Council's written and oral submissions supported the EnvironmentCourt's decision (subject to the same two exceptions raised by the Society).Issues on appeals[49] The key issue on the appeals is whether the Freshwater Standards apply to"natural wetlands" in the CMA. A subsidiary issue is what declarations should bemade.[50] Both issues are questions of law and are therefore within the scope of an appealto this Court under the RMA.52Do the Freshwater Standards apply to "natural wetlands" in the CMA?The issue: the scope of application of the Freshwater Standards[51] Regulations and other enactments have a particular scope of application. Theirscope may be determined temporally, spatially, by reference to activities or in some52 RMA, s 299.other way. The issue here is about the spatial scope of application of the FreshwaterStandards: do they apply to natural wetlands in the CMA?[52] National environmental standards are made under s 43 of the RMA. Section43(4) provides for their spatial application:43 Regulations prescribing national environmental standards(4) Regulations made under this section may apply—(a) generally; or(b) to any specified district or region of any local authority; or(c) to any specified part of New Zealand.[53] The "may" in s 43(4) is not permissive – national environmental standardsmust have some spatial application. The "may" merely indicates the available optionsas to spatial application. The default option is general application. The alternative isapplication to "specified" districts, regions or parts of New Zealand. "Part" is a broadterm. The CMA is a "part" of New Zealand. The area outside the CMA is also a"part".[54] Some enactments contain a provision that is explicit as to the spatialapplication of the enactment. The Freshwater Standards do not contain a regulationspecifically addressing this. The spatial application of the Freshwater Standards canbe determined only from the terms of the operative regulations in parts 2 and 3:(a) Regulation 8 provides that part 2 (standards for farming activities)applies only to farms of a certain size.(b) The regulations in subpart 1 of part 3 (natural wetlands) regulateactivities within, or within a certain setback from, a "natural wetland".(c) Subpart 2 of part 3 applies to the reclamation of "any river".(d) Subpart 3 of part 3 (fish passage) regulates the placement and use ofcertain structures in, on, over or under the bed of "any river orconnected area".[55] The spatial application of subpart 1 of part 3 is therefore determined by themeaning of "natural wetland".[56] This is not to say there must be a narrow focus on that term or its definition.The meaning of an enactment (including any part of an enactment) must be ascertainedfrom its text and in the light of its purpose.53 It is merely to say that it is this term, themeaning of which must be ascertained in the manner just described, that subpart 1 ofpart 3 of the Freshwater Standards uses to determine its spatial application.[57] Mr Littlejohn, counsel for the Society, submitted that the issue before thisCourt was the meaning of the Freshwater Standards "as a whole", rather than themeaning of "natural wetland". For the reasons set out above, I do not accept thatsubmission, though I accept that the meaning of "natural wetland" must be ascertainedin the context of the Freshwater Standards as a whole.Text: "natural wetland"; "wetland"; non-adoption of "natural inland wetland"[58] In the Freshwater Standards, unless the context otherwise requires, "naturalwetland has the meaning given by the [Freshwater Policy Statement]".54 Clause 3.21of the Freshwater Policy Statement gives this meaning:natural wetland means a wetland (as defined in the Act55) that is not:53 Interpretation Act 1999, ss 5(1) and 29. The Interpretation Act 1999 was repealed on 28 October2021 (after the hearing of these appeals) by s 6 of the Legislation (Repeals and Amendments) Act2019 (see cl 2 of the Legislation (Repeals and Amendments) Act Commencement Order 2021).Interpretation of legislation is now governed by part 2 of the Legislation Act 2019 (which cameinto force the same day: Legislation Act 2019 Commencement Order 2021). However, theseappeals are to be determined as if the Interpretation Act 1999 had not been repealed: LegislationAct 2019, s 33. In any event, the result would be the same even if the Legislation Act 2019 applied.Section 10(1) of that Act is in the same terms as s 5(1) as the Interpretation Act 1999, except forthe addition of the reference to the legislation's "context". Context was considered even underthe Interpretation Act 1999: R I Carter, Burrows and Carter Statute Law in New Zealand (6th ed,LexisNexis, Wellington, 2021) at 325–327.54 Freshwater Standards, reg 3.55 That is, the RMA.(a) a wetland constructed by artificial means (unless it was constructed tooffset impacts on, or restore, an existing or former natural wetland);or(b) a geothermal wetland; or(c) any area of improved pasture that, at the commencement date, isdominated by (that is more than 50% of) exotic pasture species and issubject to temporary rain-derived water pooling[59] This definition refers to the RMA definition of "wetland", which is:56wetland includes permanently or intermittently wet areas, shallow water, andland water margins that support a natural ecosystem of plants and animals thatare adapted to wet conditions[60] The RMA defines other terms relevant to this definition.57 "Water" meanswater in all its physical forms whether flowing or not. It includes fresh water, coastalwater and geothermal water. "Coastal water" means seawater, including seawater witha substantial freshwater component, and including seawater in "estuaries, fiords,inlets, harbours, or embayments". The CMA means "the foreshore, seabed, andcoastal water, and the air space above the water" of which the landward boundary isthe "line of mean high water springs" (except where that line crosses a river).58[61] It follows from these definitions that, under the RMA, a wetland includes areasthat are wet (permanently or intermittently) from seawater, shallow seawater, and landseawater margins (if they support a natural ecosystem of plants and animals that areadapted to wet conditions). Any such wetland on the seaward side of the line of meanhigh water springs (or the alternative line in a river) is within the CMA.[62] It is therefore clear that, under the RMA, a wetland includes a wetland in theCMA. The Environment Court was of that view.59 The only party to the appeals whosuggested that view might be wrong was the Society. Mr Littlejohn said in his oralsubmissions that there was a compartmentalisation or differentiation in the RMA56 RMA, s 2.57 RMA, s 2.58 If the line crosses a river, the landward boundary of the CMA is the lesser of one kilometre or fivetimes the width of the river mouth upstream from the river mouth.59 Bay of Islands Maritime Park Inc v Northland Regional Council [2021] NZEnvC 6 at [3], [9],[22], [46], [55] and [56]. Had the Court thought a wetland could not be in the CMA, it would noteven have had to enquire whether the Freshwater Standards apply "to both freshwater wetlandsand wetlands in the CMA": at [3].between the CMA on the one hand and wetlands on the other.60 He relied on s 6(a),which provides:6 Matters of national importanceIn achieving the purpose of this Act, all persons exercising functionsand powers under it, in relation to managing the use, development,and protection of natural and physical resources, shall recognise andprovide for the following matters of national importance:(a) the preservation of the natural character of the coastalenvironment (including the coastal marine area), wetlands,and lakes and rivers and their margins, and the protection ofthem from inappropriate subdivision, use, and development:[63] If that was intended as a submission that, under the RMA, a wetland cannot bein the CMA,61 I reject the submission. Section 6 identifies matters of nationalimportance. It is not intended to, and does not, compartmentalise or differentiatebetween different concepts used within the RMA. There is plainly overlap betweenthe concepts to which s 6(a) refers. Wetlands, lakes and rivers may be within thecoastal environment. Wetlands may be within the margins of lake and rivers. And, asI have explained, wetlands may be in the CMA.[64] Returning to the definition of "natural wetland" in the Freshwater Standards,this definition adopts (through the Freshwater Policy Statement) the definition of"wetland" in the RMA, which includes wetlands in the CMA. The definition excludesthree types of wetland, leaving "natural" wetlands. The definition does not exclude awetland that is in the CMA.[65] So, having taken the trouble to exclude some types of wetlands, the drafters ofthe Freshwater Standards did not exclude wetlands in the CMA. This stronglysupports a meaning of "natural wetland" in the Freshwater Standards as any wetland(other than one of the three excluded types), whether in or outside the CMA.6260 The Council accepted that the RMA contemplates a wetland can occur in any environment,including the CMA.61 The submission may merely have been a broader one as to the purpose of the RMA and thereforeof the Freshwater Standards. I deal with this below.62 I therefore reject Mr Littlejohn's submission that the interpretation of the Freshwater Standardsput forward by the appellants is based "solely on what is not said" (namely, not adopting the[66] If the drafters of the Freshwater Standards had wished to exclude from "naturalwetland" any wetland located in the CMA, the Freshwater Policy Statement had justthe term for the job:natural inland wetland means a natural wetland that is not in the coastalmarine area[67] The Freshwater Standards do not adopt this narrower term. Instead, theFreshwater Standards adopt a term that includes a wetland in the CMA. Thisreinforces the interpretation of "natural wetland" in the Freshwater Standards as anatural wetland inside or outside the CMA. On the contrary interpretation put forwardby the Society, "natural wetland" in the Freshwater Standards means the same as"natural inland wetland" in the Freshwater Policy Statement – the very term theFreshwater Standards do not use.63"Unless the context otherwise requires"[68] Mr Doesburg acknowledged that the broad and inclusive definitions of "naturalwetland" and "wetland" in the Freshwater Policy Statement and RMA supported theinterpretation of "natural wetland" in the Freshwater Standards advanced by theappellants. But he noted that the definition of "natural wetland" in the FreshwaterStandards was preceded by the common qualifier "unless the context otherwiserequires". He submitted the broader context of subpart 1 of part 3 "may require aconstrained approach" to the broad definition of "natural wetland".64 By "constrainedapproach" Mr Doesburg meant an interpretation that the Freshwater Standards do notapply to natural wetlands in the CMA – an interpretation for which Mr Littlejohn alsoadvocated.65Freshwater Policy Statement's definition of "natural inland wetland"). The interpretation is basedon what is said in the Freshwater Standards. It is merely reinforced by what is not said.63 To be clear, the Environment Court did not go that far: it held that the Freshwater Standards applyto some natural wetlands in the CMA – but only those within a "river or connected area".64 Mr Doesburg's restrained submissions reflected, I assume, the "more neutral" position the Councilsaid it was taking. The Society was not so restrained.65 I observe that Mr Doesburg's submission was that the wider text required a constrained meaningof "natural wetland" throughout the Freshwater Standards. That would be an unusual use of thequalifier and would mean no effect was given to the adoption by the Freshwater Standards of theFreshwater Policy Statement's definition of "natural wetland".[69] The correct approach to a qualifier such as "unless the context otherwiserequires" was summarised by Arnold J, writing for the Supreme Court, in AFFCO NewZealand Ltd v New Zealand Meat Workers and Related Trades Union Inc:66[W]here there is a defined meaning of a statutory term that is subject to acontext qualification, strong contextual reasons will be required to justifydeparture from the defined meaning. The starting point for the court'sconsideration of context will be the immediate context provided by thelanguage of the provision under consideration. We accept that surroundingprovisions may also provide relevant context, and that it is legitimate to testthe competing interpretations against the statute's purpose, against any otherpolicy considerations reflected in the legislation and against the legislativehistory, where they are capable of providing assistance. While we accept[counsel's] point that the context must relate to the statute rather thansomething extraneous, we do not see the concept as otherwise constrained.[70] I now turn to consider the context relied on by the Council and the Society,keeping in mind that strong contextual reasons are required to justify departure fromthe defined meaning of "natural wetland".Other text in subpart 1 of part 3 of the Freshwater Standards[71] The Society and the Council say other text in subpart 1 of part 3 of theFreshwater Standards points to "natural wetland" meaning a natural wetland outsidethe CMA.[72] Regulations 38 to 54 regulate activities within, or within a certain setback from,a "natural wetland". The main activities regulated are vegetation clearance,earthworks, land disturbance, and the taking, use, damming, diversion or discharge ofwater. The regulations classify these activities variously as permitted, restricteddiscretionary, discretionary, non-complying and prohibited. The classificationdepends on matters such as the purpose for which the activity is undertaken andwhether the activity complies with particular conditions.[73] Mr Doesburg (whose submissions on the broader text of subpart 1 the Societyadopted and agreed with) drew my attention to regs 38 and 39, which addressvegetation clearance or other activities that are undertaken "for the purpose of natural66 AFFCO New Zealand Ltd v New Zealand Meat Workers and Related Trades Union Inc [2017]NZSC 135, [2018] 1 NZLR 212 at [65].wetland restoration". Mr Doesburg noted that "restoration" is defined by adopting thedefinition of that term in the Freshwater Policy Statement, and that the FreshwaterPolicy Statement definition refers to natural inland wetlands (that is, natural wetlandsoutside the CMA):restoration, in relation to a natural inland wetland, means active interventionand management, appropriate to the type and location of the wetland, aimedat restoring its ecosystem health, indigenous biodiversity, or hydrologicalfunctioning.[74] Mr Doesburg submitted this was an indication that regs 38 and 39 wereintended to be confined to natural wetlands outside the CMA. I do not agree.Regulations 38 and 39 use the term "natural wetland restoration". In that term, thewords "in relation to a natural inland wetland" (from the definition of "restoration")are otiose, since the restoration is not carried out in relation to such a wetland. Theterm "natural wetland restoration" plainly requires adoption of the remainingfunctional parts of the definition, so that the term means: active intervention and management, appropriate to the type and locationof the wetland, aimed at restoring its [that is, the natural wetland's] ecosystemhealth, indigenous biodiversity, or hydrological functioning.[75] Mr Doesburg made a more general submission as to the focus of the regulationsin subpart 1 of part 3. He said that, as the Environment Court had noted,67 theregulations make no reference to the CMA or to coastal concepts. Rather, hesubmitted, the focus of the subpart is on activities "that would typically occur on land".He made several points in this regard.[76] First, reg 39 requires that an application for a resource consent for naturalwetland restoration must include a restoration plan that includes the information setout in sch 2 of the Freshwater Standards. Mr Doesburg said that the information insch 2 is associated with "land-based wetlands" – by which he meant wetlands outsidethe CMA – and this suggested reg 39 was not intended to apply to natural wetlands inthe CMA:67 Bay of Islands Maritime Park Inc v Northland Regional Council [2021] NZEnvC 6 at [50]–[54].(a) Clause 1(b) of sch 2 requires identification of the owners of the site ofthe activity. Mr Doesburg said the CMA is incapable of ownership.68(a) Clause 2 requires a description of the features and values of the naturalwetland. Mr Doesburg said these features and values have a land-basedfocus, including identification of the wetland's water source (cl 2 says"for example, streams, rivers, seeps, or solely rain"), any modification("for example, drains, weirs, culverts, canals, or stop banks"), orartificial features ("for example, roads, electricity lines, buildings, andaccess points").[77] I do not accept this submission. As to cl 1(b), reg 39 controls activities bothwithin a natural wetland and within a setback (of up to 100 metres) of a naturalwetland. The site of the activity will, therefore, not necessarily be within the naturalwetland itself. It may be on land that is ordinarily capable of ownership. Even if thesite of the activity is within the natural wetland, and the natural wetland is within theCMA, it is not the case that the entirety of the CMA is incapable of ownership.69 I doaccept there will be many instances in which a natural wetland within the CMA isincapable of ownership. But even in those instances, the information required by cl1(b) of sch 2 can be provided by saying "the site has no owners".[78] As to cl 2, the features and values to which it refers are as applicable to a naturalwetland in the CMA as to one outside the CMA. A wetland in the CMA will have awater source – it need not be of a type specified in cl 2, which are mere examples. Awetland in the CMA may have been modified or have artificial features – themodification or artificial feature need not be one of the examples given by cl 2 either.[79] Secondly, Mr Doesburg said regs 48 and 49 regulate sphagnum mossharvesting, an activity that he said occurs only in inland wetlands. Mr Doesburg didnot refer me to any evidence to support that proposition, and there was no finding tothat effect in the Environment Court. Even if there was some basis for his proposition,68 Mr Doesburg relied on s 11 of the Marine and Coastal Area (Takutai Moana) Act 2011.69 See the definition of "common marine and coastal area" in s 9 of the Marine and Coastal Area(Takutai Moana) Act 2011.that would merely mean that two particular regulations had no application to naturalwetlands in the CMA. That would not say anything about the balance of subpart 1.[80] Thirdly, Mr Doesburg submitted reg 50 relates to arable and horticultural landuse, an activity that occurs on land. It is correct that those activities occur on land, butthat does not indicate that reg 50 (or subpart 1) is confined to natural wetlands outsidethe CMA. Regulation 50 applies to vegetation clearance, earthworks and landdisturbance outside (but within a ten-metre setback from) a natural wetland if theactivity is for arable or horticultural land use. So of course the relevant activity willbe occurring on land. But that does not indicate anything about the intended scope ofreg 50. The regulation is just as applicable to an activity occurring on land within aten-metre setback from a natural wetland in the CMA as it is to an activity occurringon land within a ten-metre setback from a natural wetland outside the CMA.[81] Fourthly, reg 55 specifies general conditions that apply to most of the activitiesregulated by subpart 1. Mr Doesburg said the general conditions do not mention theCMA or effects that might arise from activities in the CMA (such as effects on coastalprocesses, risk of coastal hazards, hazards to navigation or disturbance of the seabed).I do not accept that characterisation of reg 55. The conditions in reg 55 are generic,and many are as applicable to the effects of activities in natural wetlands in the CMA(or within a setback from a natural wetland in the CMA) as to the effects of activitiesin natural wetlands outside the CMA. For example:(a) The activity must not result in the discharge of a contaminant if thereceiving environment includes any natural wetland and thecontaminant may cause adverse effects on aquatic life.70 Aquatic lifemay be in or outside the CMA.71(b) The activity must not alter the natural movement of water into, within,or from any natural wetland.72 This is applicable to a wetland in theCMA.70 Freshwater Standards, reg 55(3)(a)(v).71 See the definition of aquatic life in s 2(1) of the Fisheries Act 1996, adopted by s 2(1) of the RMA.72 Freshwater Standards, reg 55(3)(c).(c) The activity must not contribute to the erosion of the bed or bank of anynatural wetland.73 This is applicable to a wetland in the CMA.(d) Erosion and sediment control measures must be used to minimiseadverse effects of sediment on natural wetlands. These measures mustinclude stabilising or containing soil exposed or disturbed by theactivity. The measures must remain in place until vegetation coversmore than 80 per cent of the site of the activity.74 This condition is justas applicable and relevant to an activity taking place within (or withina setback from) a wetland in the CMA as it is to one outside the CMA.[82] Finally, Mr Doesburg said that one of the activities regulated by subpart 1 ofpart 3 was "earthworks". This means the "alteration or disturbance of land" by variousmeans.75 While acknowledging this definition is broad, Mr Doesburg submitted it wasan unusual term to use in the context of the CMA. This was because s 12(1) of theRMA restricts certain activities in the CMA and uses specific terms to do so. Under s12(1) no person may, in the CMA, "disturb" any foreshore or seabed, "deposit"substances in, on or under any foreshore or seabed, or "destroy" or "damage" anyforeshore or seabed. Mr Doesburg submitted that if the activities restricted by s 12(1)were intended to be controlled by the Freshwater Standards, the Freshwater Standardswould have used the terms in s 12(1), rather than use a term ("earthworks") that MrDoesburg said was "widely understood as a land-based activity".[83] I do not accept that submission. First, as noted, "earthworks" means the"alteration or disturbance of land". In that definition, "land" has the same meaning asin s 2 of the RMA.76 In s 2 of the RMA, "land" includes "land covered by water" and"water" includes "coastal water". The term "earthworks" therefore includes thealteration or disturbance of land under coastal water in the CMA. Secondly, therestrictions in s 12(1) apply unless the activity is expressly allowed by, among otherthings, national environmental standards. For a national environmental standard toexpressly allow an activity, s 12(1) does not require the national environmental73 Freshwater Standards, reg 55(7)(b).74 Freshwater Standards, reg 55(8).75 Freshwater Standards, reg 3, adopting the definition in the National Planning Standards 2019.76 National Planning Standards 2019, definitions standard.standard to use the same terms as used in s 12(1). Thirdly, in any event the FreshwaterStandards do use one term found in s 12(1): "earthworks" includes "disturbance", ands 12(1)(c) uses the term "disturb".[84] In summary, I do not accept that the wider text of subpart 1 of part 3 indicatesthat the subpart is intended to apply only to natural wetlands outside the CMA.Title and heading – "freshwater"[85] Mr Doesburg and Mr Littlejohn both relied on the term "freshwater" thatappears in the title of the Freshwater Standards ("Standards for Freshwater") and inthe heading to part 3 ("Standards for other activities that relate to freshwater"). Theysaid this indicated that the purpose of the Freshwater Standards is to managefreshwater resources and not resources in the CMA. Mr Littlejohn submitted that ifthe appellants' interpretation were correct, the Freshwater Standards would have beenentitled the "Standards for Water".[86] I accept that titles and headings can be considered when ascertaining themeaning of the Freshwater Standards.77 However, by their nature titles and headingscannot be comprehensive as to the scope of the provisions that they entitle or head.For that reason, they are usually weak indicators of meaning.[87] In this case it is clear, even leaving subpart 1 of part 3 to one side for themoment, that the title "Standards for Freshwater" is not intended to confine theFreshwater Standards to freshwater resources. Part 2 regulates farming activitieslargely by reference to whether contaminants will enter "water". As noted earlier, inthe RMA "water" includes both freshwater and coastal water. That meaning appliesto the Freshwater Standards, unless the context requires a different interpretation.78The context of the Freshwater Standards does not require a different interpretation.Part 2 refers to "freshwater" on some occasions, so it is clear the use of the broaderterm "water" is deliberate.77 Interpretation Act 1999, s 5(2).78 Interpretation Act 1999, ss 4(1)(b) and 34.[88] Further, part 2 provides that the conditions for some regulated activities includethat the activities take place a certain distance from both freshwater bodies and theCMA.79 This makes it clear that, notwithstanding the title, the Freshwater Standardsregulate the management of both freshwater and CMA resources.[89] A similar point can be made about the heading to part 3, "Standards for otheractivities that relate to freshwater". Subpart 3 of part 3 regulates structures affectingthe passage of fish where those structures are in, on, over or under the bed of "anyriver or connected area". That term is defined to include any part of the CMA upstreamfrom the mouth of a river. Notwithstanding its heading, part 3 therefore regulatesmanagement of resources in the CMA. It does not merely manage freshwaterresources.[90] In these circumstances, I do not accept that the title and the heading wereintended to constrain the scope of application of subpart 1 of part 3 to natural wetlandsoutside the CMA.Purposive interpretation[91] The Freshwater Standards must be interpreted in light of their purpose. TheFreshwater Standards do not state any specific purpose, other than for subpart 3 of part3 (fish passage).[92] Mr Littlejohn and Mr Doesburg submitted that the purpose of the FreshwaterStandards was to regulate natural wetlands outside the CMA. There were severalstrands to their submissions.Purpose: distinction in RMA between management of freshwater and coastalwater/CMA[93] Mr Doesburg submitted that the RMA drew a distinction between themanagement of freshwater and the management of the CMA. Mr Littlejohn made asimilar submission. He said the RMA clearly distinguishes between areas wherefreshwater is the principal influence and areas where coastal water is the dominating79 For example, regs 10 and 13.type of water present. As noted earlier, he also submitted there was acompartmentalisation or differentiation in the RMA between the CMA on the one handand wetlands on the other.[94] I accept the RMA draws some distinctions between the management offreshwater and the management of coastal water and the CMA. For example:(a) The definition of "freshwater" in the RMA expressly excludes coastalwater.(b) Section 12 places restrictions on the use of the CMA. Section 14imposes restrictions relating to the use of water, drawing distinctionsbetween coastal water and freshwater.(c) Section 80A, which was introduced at the same time as the FreshwaterPolicy Statement and the Freshwater Standards, requires regionalcouncils to prepare freshwater planning instruments under thefreshwater planning process.[95] But the RMA does not mandate that such distinctions must be reflected innational environmental standards. Sections 43 and 43A determine the permissiblescope of a national environmental standard. Both sections are in wide terms. Forexample, under s 43 national environmental standards may prescribe standards for(among other things) the matters referred to in ss 9 (land), 11 (subdivision of land), 12(CMA), 13 (beds of lakes or rivers), 14 (water) or 15 (discharge of contaminants).Purpose: common intent between Freshwater Policy Statement and FreshwaterStandards as a freshwater "package"[96] The Freshwater Policy Statement applies to freshwater and to receivingenvironments to the extent they are affected by freshwater.80 It applies to naturalwetlands only if they are outside the CMA. The Freshwater Policy Statement and theFreshwater Standards were introduced as part of a freshwater package.80 Freshwater Policy Statement, cl 1.5.[97] The Environment Court saw these matters as important in interpreting theFreshwater Standards. The Court said the only indication of a "change of intent"between the Freshwater Policy Statement and the Freshwater Standards was thereference in the latter solely to natural wetlands rather than to natural inlandwetlands.81 That was not sufficiently explicit to conclude that the FreshwaterStandards were intended to apply to all areas including the CMA.82 The Court alsosaid that the Freshwater Standards "follows" the Freshwater Policy Statement "and isconcerned with freshwater impacts on receiving environments".83[98] Mr Doesburg said there was force to the Court's views. The Freshwater PolicyStatement and the Freshwater Standards were both promulgated together as part of apackage of freshwater reforms. Together with regulations excluding stock fromwaterways, the Freshwater Policy Statement and Freshwater Standards were held outas a key mechanism for protecting and restoring freshwater.[99] Mr Littlejohn also supported the Court's approach. He submitted theFreshwater Policy Statement and the Freshwater Standards were part of a package"unambiguously designed to improve freshwater outcomes". He said this wassupported by the introduction, at the same time, of the freshwater planning process ins 80A of the RMA.[100] Mr Doesburg and Mr Littlejohn therefore submitted that the purpose of theFreshwater Standards was, like the Freshwater Policy Statement, to regulate onlyfreshwater resources – not natural wetlands in the CMA.[101] I accept that the context for interpreting the Freshwater Standards includes thatit was introduced as part of a package with the Freshwater Policy Statement and othermeasures. But, with respect, I do not accept that this context supports the view thatthe purpose of the Freshwater Standards was limited to regulating freshwaterresources.81 At [24].82 At [59].83 At [55].[102] The Freshwater Standards do not provide that they "follow" or give effect tothe Freshwater Policy Statement. National environmental standards sit alongsidenational policy statements as part of the national direction for resource management.Regional and district planning documents have to give effect to national policystatements and are subject to national environmental standards.84 Nationalenvironmental standards may implement policies and objectives in a national policystatement, but there is nothing in the Freshwater Standards to indicate that they wereimplementing only the Freshwater Policy Statement. The Freshwater Standards couldalso be implementing policies and objectives from the Coastal Policy Statement.85[103] There are of course linkages between the Freshwater Standards and theFreshwater Policy Statement: the Freshwater Standards adopt definitions from theFreshwater Policy Statement. This does not mean that the Freshwater Standards sharea common intent or scope with the Freshwater Policy Statement. The FreshwaterStandards also adopt definitions from the National Environment Standards forPlantation Forestry, from the National Planning Standards 2019, and from theBiosecurity Act 1993. The linkage between the Freshwater Standards and theFreshwater Policy Statement that is most relevant for this appeal – the adoption of thedefinition of "natural wetland" rather than "natural inland wetland" – stronglyindicates the two documents have (in part) a different scope.[104] It is also true that the Freshwater Standards were introduced at the same timeas the Freshwater Policy Statement and that they were repeatedly described as a"freshwater" package. For example:(a) In September 2019 the Ministry for the Environment issuedconsultation drafts of the proposed Freshwater Policy Statement andFreshwater Standards. They were accompanied by a document fromthe Ministry entitled Actions for healthy waterways – A discussiondocument on national direction for our essential freshwater.84 See the earlier summary of the different functions of planning documents at [10]–[12].85 The Coastal Policy Statement has policies protecting wetlands, including coastal wetlands:policies 11 and 13.(b) As part of that consultation the Ministry issued an interim RegulatoryImpact Analysis for consultation, entitled Essential Freshwater.(c) After consultation, Cabinet agreed to the introduction of the FreshwaterPolicy Statement, the Freshwater Standards and new Stock ExclusionRegulations under the RMA. The Cabinet paper was entitled Actionfor Healthy Waterways – Decisions on National Direction andRegulations for Freshwater Management.(d) When the Freshwater Policy Statement, Freshwater Standards andStock Exclusion Regulations came into force, the Ministry for theEnvironment published factsheets referring to them as an "EssentialFreshwater package".[105] All the parties to the appeal referred to these (and other) background materialsin support of their competing interpretations of the Freshwater Standards. There isdoubt over the extent to which Cabinet papers can be used in the interpretation of Actsof Parliament.86 I respectfully agree with the view of Collins J in B v Chief Executiveof the Ministry of Social Development that the position is different in relation toregulations, given they are the prerogative of the Executive.87 However, I very muchdoubt "factsheets" published by a Ministry to describe regulations could ever be auseful aid to interpretation. It is unnecessary for me to decide that point, since thefactsheets do not, as I explain below, support the Council and Society's submissionsas to the purpose of the Freshwater Standards.[106] The use of the word "freshwater" in the titles to these background materialsdoes indicate that the purpose of the Freshwater Standards is to regulate freshwater.But, as I explained earlier, a title can be only a weak indication of meaning (or in thiscase purpose). If the background materials are to be used as an aid to determining thepurpose of the Freshwater Standards, it is necessary look beyond their titles. On doing86 Skycity Auckland Ltd v Gambling Commission [2007] NZCA 407, [2008] 2 NZLR 182.87 B v Chief Executive of the Ministry of Social Development [2012] NZHC 3165 at [21]–[24]. TheCourt of Appeal dismissed an appeal against this decision, but expressed no firm view on whetherCabinet material could be used as an aid to interpreting regulations: B v Chief Executive of theMinistry of Social Development [2013] NZCA 410, [2013] NZAR 1309 at [33].so, it is clear the purpose of the Freshwater Standards was to regulate more thanfreshwater. In particular, the purpose was for the Freshwater Standards to apply tonatural wetlands both in and out of the CMA:88(a) The September 2019 discussion document, when addressing wetlands,drew a distinction between the Freshwater Policy Statement (whichwould apply to "natural inland wetlands") and the FreshwaterStandards (which would restrict activities considered the mostdestructive to "inland and coastal wetlands").89 It said one of the keyinteractions between the freshwater package and the Coastal PolicyStatement was that "protections for wetlands under the Freshwater[Standards] will include coastal wetlands".90(b) The interim Regulatory Impact Analysis proposed, among other things,to "develop [national environmental standards] rules to apply to inlandand coastal wetlands".91 The same proposal was made in the finalRegulatory Impact Analysis.92 These papers explained that, bycontrast, the scope of the Freshwater Policy Statement was limited tonatural inland wetlands "given coastal wetlands are the domain of the[Coastal Policy Statement]".93(c) The Cabinet paper recorded that the Freshwater Standards wouldimpose requirements and conditions on activities that "lead to the lossof wetlands, including coastal wetlands". Policies in the FreshwaterPolicy Statement would also address wetlands, except coastal wetlands,88 Counsel told me that submissions were made on these background materials in the EnvironmentCourt. The Court's decision does not refer to them.89 Ministry for the Environment Actions for healthy waterways – A discussion document on nationaldirection for our essential freshwater (Ministry for the Environment, Wellington, 2019) at 44.90 At 101.91 Interim Regulatory Impact Analysis for Consultation: Essential Freshwater Part II: DetailedAnalysis (Ministry for the Environment, Wellington, August 2019) at 254 and 259.92 Regulatory Impact Analysis: Action for healthy waterways Part II: Detailed Analysis (Ministryfor the Environment, Wellington, May 2020) at 207.93 At 253 and 205 respectively.for which policy direction was provided by the Coastal PolicyStatement.94(d) The Ministry published an "Overview factsheet" explaining the"Essential Freshwater package". Mr Littlejohn emphasised that thisfactsheet said the Freshwater Standards include measures to stop thedecline in "freshwater" quality. But the Ministry also published a morespecific "Wetlands factsheet". This said the Freshwater PolicyStatement applies to natural inland wetlands whereas the FreshwaterStandards apply to natural inland wetlands and coastal wetlands.[107] Mr Littlejohn made the fair point that the draft Freshwater Standards thataccompanied the discussion document defined "natural wetland" as a wetland asdefined in the RMA "regardless of whether it is dominated by indigenous or exoticvegetation, and including coastal wetlands", subject to the same three exclusions thatwere carried through to the final version. That definition was therefore explicit as toits coverage of coastal wetlands, whereas the final form of the definition used in theFreshwater Standards was not.[108] I accept there is a difference in the definition, but I do not accept the differenceis material or there was any change in the purpose. The definition in the FreshwaterStandards was changed to one that simply drew on the RMA definition of wetland,subject to the three exclusions. The words "regardless of whether it is dominated byindigenous or exotic vegetation, and including coastal wetlands" were unnecessary,since the RMA definition of "wetland" captures wetlands regardless of vegetation typeor whether the wetland is in the CMA. It is clear from the final regulatory impactanalysis and the Cabinet paper that the purpose remained the same.[109] Quite apart from those background materials, it is readily apparent from theterms of the package that its purpose extended beyond freshwater:94 Cabinet Economic Development Committee Action for Healthy Waterways – Decisions onNational Direction and Regulations for Freshwater Management (20 May 2020) at [53].(a) As I explained earlier, even putting to one side the terms of subpart 1of part 3 of the Freshwater Standards that are in issue on these appeals,part 2 (standards for farming activities) and subpart 3 of part 3 (fishpassage) regulate the management of both freshwater and CMAresources.(b) The Stock Exclusion Regulations require the exclusion of stock fromnatural wetlands.95 The definition of "natural wetland" incorporates thedefinition of "wetland" in the RMA, and therefore includes a naturalwetland in the CMA. These regulations are therefore not confined tofreshwater.[110] In summary, I do not accept the submission that the purpose of the FreshwaterStandards was to regulate only freshwater resources and not natural wetlands in theCMA.The relevance of s 80A of the RMA[111] As noted, a new freshwater planning process was introduced by s 80A of theRMA shortly before the Freshwater Policy Statement and Freshwater Standards cameinto force. The Environment Court thought this was relevant to the issue before it.The Court said that "to subsume the entire environment including the CMA and landuse within the purview of the freshwater regulations or freshwater regime set up unders 80A would be anathema given the requirement to develop the regional plans andregional coastal plans separately to those for freshwater".96 One of the Court's reasonsfor concluding that the Freshwater Standards generally did not apply in the CMA wasthat freshwater planning instruments prepared under s 80A "would not integratedirectly with the area covered by regional plans and as such would lead to issues as tohow these would be implemented and enforced".9795 Resource Management (Stock Exclusion) Regulations 2020, reg 16.96 At [32].97 At [61].[112] Mr Doesburg said the Environment Court's comments on s 80A reflected thegeneral scheme of the RMA to manage freshwater and the CMA separately (a point Ihave already dealt with). He did not otherwise submit that s 80A was relevant.[113] Mr Littlejohn submitted the Environment Court was correct in its considerationof s 80A. He said s 80A(1) required all "freshwater planning instruments" to undergothe freshwater planning process. A "freshwater planning instrument" is defined in s80A(2) as a proposed regional plan or regional policy statement for the purpose ofgiving effect to the Freshwater Policy Statement or otherwise relating to freshwater.However, s 80A(8) excludes from that definition any proposed regional coastal plan.Mr Littlejohn submitted this meant that if the Freshwater Standards applied to theentire CMA:(a) A proposed regional coastal plan would have to undergo the freshwaterplanning process (as a "freshwater planning instrument"); but(b) A proposed regional coastal plan would be excluded from the definitionof "freshwater planning instrument" and therefore be precluded fromundergoing the freshwater planning process.[114] This, Mr Littlejohn said, would give rise to an inherent conflict. It followedthat the scope of the Freshwater Standards could not extend to the CMA and thereforecoastal plan provisions. The Freshwater Standards, being subordinate legislation,could not prevail over the RMA.[115] I do not accept that submission. It is not the case that, if the FreshwaterStandards apply to natural wetlands in the CMA, a proposed regional coastal planwould somehow become a freshwater planning instrument. Section 80A is clear: aproposed regional coastal plan is not a freshwater planning instrument. In my view,and with respect to the Environment Court, s 80A is irrelevant to determining the scopeof application of the Freshwater Standards.Avoiding unreasonableness and absurdity[116] Mr Littlejohn submitted that legislation should be interpreted in a way thatproduces a practical, workable and sensible result. He submitted the application ofthe Freshwater Standards "to coastal water in the CMA" would lead to significantunintended consequences or absurdity and produce an impractical and unworkableresult. He said the "entire CMA" would then theoretically be a wetland, meaning theFreshwater Standards would regulate all vegetation clearance, seabed disturbance andwater diversions in the CMA. This would override a multitude of planning provisionsthat had been carefully crafted for the coastal areas of New Zealand.[117] This submission put up a straw man. What is in issue in this appeal is whetherthe Freshwater Standards apply to natural wetlands in the CMA. No-one is suggestingthe entire CMA is a wetland subject to the Freshwater Standards. While the scope ofa "wetland" was not in issue on this appeal, I am reasonably confident it does notencompass the entirety of the CMA, the seaward boundary of which is the outer limitsof New Zealand's territorial sea.[118] Mr Littlejohn made a related and more restrained submission. He supportedthe Environment Court's observation that applying the Freshwater Standards to naturalwetlands in the CMA would be "a significant imposition for management of much ofthe coastline".98 He submitted that this was relevant to the interpretation of theFreshwater Standards, relying on the principle that legislation should be interpreted ina way that produces a practicable, workable and sensible result.99 Mr Doesburg madea similar submission.[119] The principle on which Mr Littlejohn and Mr Doesburg relied applies onlywhere there is ambiguity or a gap to be filled.100 That is not the case here. For thereasons I have given, the meaning of "natural wetland" in subpart 1 of part 3 is plain.Further, even if there were ambiguity or a gap, a "significant imposition" is not the98 At [61].99 R v Salmond [1992] 3 NZLR 8 (CA) at 13; Re Watercare Services Ltd [2018] NZHC 294 at [64].100 R v Salmond [1992] 3 NZLR 8 (CA) at 13 ("In cases of ambiguity or hiatus [Acts] should beinterpreted so as to be made to work"; Re Watercare Services Ltd [2018] NZHC 294 at [64]("Where there are two possible interpretations ").same as impracticable or unworkable. It is clear from the background materials thatthe costs and benefits of the Freshwater Standards were considered (and intended).Other matters relied on by Environment Court[120] In reaching its decision the Environment Court relied on some further mattersthat I have not addressed above. The parties dealt with these only briefly in theirsubmissions.[121] One of the reasons for the Environment Court's interpretation was that, if theFreshwater Standards had effect within the CMA, it would potentially conflict with,or have significant consequences for issues under, the Fisheries Act 1996.101 TheMinister said this was an error, as the activities controlled by subpart 1 of part 3 of theFreshwater Standards (vegetation clearance and the like) are not regulated under theFisheries Act. Forest and Bird said it was an error because there is no blanketrestriction on spatial overlap of management controls promulgated under the RMAand the Fisheries Act.102 The Council and the Society submitted that the reference tothe Fisheries Act was not an error (or at least not a material error), because theEnvironment Court merely said there was a potential for conflict with the FisheriesAct, and this was only one of the factors on which the Court relied in reaching itsdecision.[122] In my view, and with respect, this was an error by the Court. The Court didnot explain the potential conflict with the Fisheries Act. Mr Doesburg and MrLittlejohn did not identify any potential conflict. None is apparent. As to it beingmaterial, this was part of the first reason the Court gave for its conclusion.[123] The Environment Court reasoned that, given the mandatory nature of theFreshwater Standards, "we must construct them against the party [by which the Courtmeant the Government] which seeks to implement them".103 All parties agreed thereis no such principle of statutory interpretation, though Mr Doesburg and Mr Littlejohn101 At [48] and [61].102 Attorney-General v Trustees of the Motiti Rohe Moana Trust [2019] NZCA 532, [2019] 3 NZLR876.103 At [61].submitted the Court may have intended to refer to the principle that legislation thatinterferes with fundamental rights must do so clearly and unambiguously. I agree thatwas likely the Court's intention. However, even if the Freshwater Standards interferewith some fundamental right (which is not obvious), they do so clearly andunambiguously.[124] Finally, the Environment Court held that the Freshwater Standards use "riveror connected area" as a clear and convenient demarcation point for their application.All parties agreed that this was an error in respect of the natural wetland provisions ofthe Freshwater Standards. I agree. As Mr Littlejohn submitted, that term is used onlyin the regulations dealing with fish passage, and there is no nexus between the fishpassage regulations and the natural wetland regulations.Conclusion[125] I conclude that:(a) The Freshwater Standards apply to natural wetlands in the CMA.(b) The Environment Court erred in concluding that the FreshwaterStandards apply to the CMA only to the extent they cover the areaupstream of the river mouth.[126] The Environment Court recorded that, in addition to the issue whether theFreshwater Standards apply to natural wetlands in the CMA, there might be relatedissues as to what constitutes a wetland in the CMA (for example, eel grass in harboursor kelp bed in deeper waters). The Environment Court did not attempt to resolve thoseissues.104 Similarly, those issues were not addressed on the appeals before me.What declarations should be made?[127] Given my conclusion I will quash all three declarations made by theEnvironment Court.104 At [9] and [10].[128] There was an issue as to the scope of the declarations that I should make inplace of those declarations. As noted earlier, the Minister sought two declarations:(a) The Freshwater Standards apply to the CMA to the extent that theFreshwater Standards cover activities affecting areas falling within therelevant definitions ("natural wetlands", "river or connected area" or"receiving environment"); and(b) The Environment Court is required to consider the proposed Plan inlight of the constraints imposed by virtue of the Freshwater Standards.[129] I agree that declaration (b) is appropriate, with a slight modification.[130] As to declaration (a), that is a declaration as to the application of the entiretyof the Freshwater Standards. By contrast, Forest and Bird proposed a narrowerdeclaration, confined to the part of the Freshwater Standards that deals with naturalwetlands:(a) The Freshwater Standards apply to natural wetlands in the CMA.[131] In my view Forest and Bird's narrower declaration is appropriate. It ishopefully clear from this judgment that the focus of submissions before me was on theapplication of the part of the Freshwater Standards dealing with natural wetlands.Although there was reference to other parts of the Freshwater Standards, that wasmerely for the purpose of determining the scope of application of the natural wetlandsregulations. No submissions were made to me as to the scope of application of theother parts of the Freshwater Standards.Result[132] The appeals are allowed.[133] Declarations A, B and C made by the Environment Court are quashed.[134] In their place I make the following declarations:(a) The Resource Management (National Environmental Standards forFreshwater) Regulations 2020 apply to natural wetlands in the coastalmarine area.(b) The Environment Court is required to consider the proposed regionalplan for Northland in light of the constraints imposed by the ResourceManagement (National Environmental Standards for Freshwater)Regulations 2020.[135] The Society's written submissions resisted any costs order in the event theappeals succeeded. Costs were not otherwise traversed at the hearing. In the eventcosts are not agreed, memoranda are to be filed and served as follows:(a) Any party seeking costs by 2 December 2021.(b) Any party resisting a costs order by 9 December 2021.[136] Each memorandum is not to exceed three pages, excluding any relevant costsschedule or annexures. I will then determine costs on the papers.______________________Campbell J