MUAŪPOKO TRIBAL AUTHORITY INCORPORATED v MINISTER FOR THE ENVIRONMENT [2023] NZCA 641

MUAŪPOKO TRIBAL AUTHORITY INCORPORATED v MINISTER FOR THE ENVIRONMENT [2023]NZCA 641 [13 December 2023]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA250/2022[2023] NZCA 641BETWEEN MUAŪPOKO TRIBAL AUTHORITYINCORPORATEDAppellantAND MINISTER FOR THE ENVIRONMENTFirst RespondentTE RŪNANGA O RAUKAWAINCORPORATEDSecond RespondentHearing: 20–21 September 2023Court: Brown, Mallon and Wylie JJCounsel: T H Bennion and E A Whiley for AppellantT C Stephens and E M Jamieson for First RespondentR B Enright, J M Pou and R G Haazen for Second RespondentC M Hockly for Horowhenua 11 Part Reservation Trust asFirst IntervenerS Johnston for Manawatū-Whanganui Regional Council asSecond IntervenerHorticulture New Zealand as Third Intervener abiding thedecision of the CourtJudgment: 13 December 2023 at 3 pmJUDGMENT OF THE COURTA The appeal and the cross-appeal are allowed.B Clause 3.33 and Appendix 5 of the National Policy Statement for FreshwaterManagement 2020 are quashed.C The Minister for the Environment is directed to reconsider whether thereshould be an exemption from the National Policy Statement for FreshwaterManagement 2020 for the vegetable growing areas in Horowhenua andPukekohe and, if there is to be an exemption, what form such exemptionshould take.D The first respondent must pay costs to the appellants, the secondrespondent/cross-appellant, the first intervener and the second intervener,each for a standard appeal on a band A basis, together with usualdisbursements. We certify for second counsel for the appellant and thesecond respondent/cross-appellant.____________________________________________________________________REASONS OF THE COURT(Given by Wylie J)Table of contentsIntroductionBackgroundThe affected water bodiesThe appellants/cross-appellantsThe Horowhenua vegetable growing areaThe intervenersLegislation relating to the Lake and Stream – the WaitangiTribunals 2017 reportDischarges to waterNational policy statementsThe NPS-FMThe fundamental concept/principlesThe objective/policiesImplementationThe exemptionsHow the vegetable exemption works in practiceThe Statements of ClaimMuaūpoko's statement of claimRuakawa's statement of claimThe High Court JudgmentList of issues on appealSubmissionsMuaūpoko's submissionsRuakawa's submissionsThe Trust's SubmissionsThe Regional Council's Submissions[1][9][9][13][16][18][21][23][26][31][32][33][34][38][41][43][43][44][45][60][62][62][67][72][75]The Minister's submissionsAnalysisConsultationRelevant statutory provisionsThe steps taken by the MinisterThe further consultation undertaken in relation to the vegetableexemptionDid the further consultation undertaken by the Minister complywith the RMA?ConclusionOther issuesResult[76][79][79][79][84][104][137][144][145][146]Introduction[1] These appeals concern a challenge, by way of judicial review, to cl 3.33(referred to in this judgment as the "vegetable exemption") of the National PolicyStatement for Freshwater Management 2020 (the NPS-FM).1[2] Freshwater environments have been in decline for many years. This becamean issue in the 2017 general election and improving freshwater quality was a keypriority for the incoming Government when it took office. In June 2018, Cabinetagreed to establish a work programme to meet its commitment to freshwaterimprovement. The programme was launched in October 2018. It involved severalproposed reforms, including amendments to the Resource Management Act 1991(the RMA) to provide for a new freshwater planning regime, a new national policystatement for freshwater management and new national environmental standardsfor freshwater.[3] After receiving and considering various reports as well as representations frominterested groups, in September 2019, the Ministry for the Environment (the MfE)published a package of proposals and the Minister for the Environment, theHonourable David Parker (the Minister), together with the Ministers of Agricultureand of Local Government put them out for public consultation. One of the documentsin the package was a draft of the proposed new NPS-FM. The draft proposed new1 Ministry for the Environment National Policy Statement for Freshwater Management 2020(February 2023) [NPS-FM]. We note that the NPS-FM was reprinted in February 2023: seebelow n 38."attributes" intended to assist in the management of freshwater pollution.2 Relevantlythe draft proposed new attributes for dissolved inorganic nitrogen and dissolvedreactive phosphorus. It was proposed that these and other attributes would be set forall freshwater bodies in New Zealand.[4] Vegetable growers in the Horowhenua and Pukekohe areas raised concern thatrun off from their land use activities would make it difficult to meet the proposed newattributes, particularly for dissolved inorganic nitrogen, in freshwater bodies in oradjacent to their vegetable growing areas. Growers were concerned that the proposed"bottom line" attribute for dissolved inorganic nitrogen would require significantreductions in the application of fertilisers to their crops, making vegetable productionunviable. They were also concerned that the proposed new attribute would, in effect,put in place restrictions on the intensification of rural land use in areas adjacent tofreshwater bodies.[5] The vegetable exemption was developed as a result of these concerns. Itproposed putting in place a special regime for freshwater bodies in two majorvegetable growing areas — one in Horowhenua and the other in Pukekohe. Theexemption would permit the regional councils in those areas to set freshwater qualitytargets in their regional plans that were below the national bottom lines stipulated inthe NPS-FM for nitrate-related attributes in freshwater.[6] After undertaking further consultation (which we discuss below) the Ministerrecommended approval of the proposed NPS-FM, including the vegetable exemption,on 3 August 2020. It was approved by the Governor-General in Council pursuant tos 52(2) of the RMA on the same day and it came into force as from 3 September 2020.[7] The appellant, Muaūpoko Tribal Authority Inc (Muaūpoko), and thecross-appellant, Te Rūnanga o Raukawa Inc (Raukawa) commenced separateproceedings in the High Court, both by way of judicial review, challenging the legalityof the vegetable exemption. Both alleged that the vegetable exemption was unlawfuland both sought orders setting it aside. The proceedings were not formally2 An attribute is defined in the NPS-FM as a measurable characteristic (numeric, narrative, or both)that can be used to assess the extent to which a particular value is provided for: cl 1.4(1).consolidated but both were heard together by Edwards J in late October 2021. TheJudge issued her judgment in relation to both on 29 April 2022.3 She dismissed theapplications for review.[8] Muaūpoko has appealed Edwards J's judgment. Raukawa has cross-appealed.Its cross-appeal has been treated as an appeal and we heard both the appeal and thecross-appeal together.4BackgroundThe affected water bodies[9] Lake Horowhenua, also known as Roto Horowhenua, Waipunahau, Punahauand Te Takere Tangata o Punahau,5 is located to the west of Levin, betweenState Highway 1 and the sea. It is the largest dune lake in the country with a surfacearea of approximately 3.9 square kilometres. It is relatively shallow — abouttwo metres deep. It receives water from several small streams and drains as wellas from groundwater. The direct catchment area for the Lake comprises some43.6 square kilometres.[10] Pollutants have been entering Lake Horowhenua for many years. Between theearly 1950s and 1987, sewage from Levin was discharged into the Lake. There hasalso been significant agricultural run-off into the Lake, including from the surroundingvegetable growing area. Toxic cyanobacteria are regularly present in the Lake. Thisis related to the large amounts of nutrients and sediment entering the Lake and alreadypresent in it. Cyanobacteria blooms can cause health issues. They can even causefatalities in dogs and small children. The Lake is now one of the most polluted anddegraded lakes in the country. It is classified as hypertrophic — in other words, it ishighly fertile and supersaturated in phosphorus and nitrogen.3 Muaūpoko Tribal Authority Inc v Minister for Environment [2022] NZHC 883, [2022] NZRMA481 [High Court judgment].4 In a minute issued by this Court on 29 June 2022, Miller J noted that Raukawa's interests wereidentical to those of Muaūpoko in the context of this appeal and he directed that Raukawa shouldbe treated as an appellant for timetabling purposes.5 Waitangi Tribunal Horowhenua, The Muaūpoko Priority Report, Pre-publication Version(Wai 2200, 2017) [Waitangi Tribunal Muaūpoko report] at 61.[11] The Hōkio Stream runs from Lake Horowhenua out to the coastal marine area.It is the sole outlet from the Lake. In 2017 the Waitangi Tribunal noted in a report thatthen recent data suggested that the Stream becomes anoxic (depleted of dissolvedoxygen) at night and that this acts to lessen the Lake's already deeply compromisedability to recover from its hypertrophic state.6[12] Before us, Muaūpoko and Raukawa asserted that the state of the Lake and theStream is at a "tipping point". They believe that even if the quantities of pollutantentering the Lake and Stream are reduced, there is still a very real risk that they mightnot recover.The appellants/cross-appellants[13] Muaūpoko is the mandated authority for the Muaūpoko iwi and hapū. It wasincorporated in 1997. Its relationship to the Horowhenua area has been considered bythe Waitangi Tribunal.7 The Tribunal found that Muaūpoko iwi and hapū have beenpresent in the area since at least the 12th century and that Muaūpoko's members havelived alongside the rivers and lakes in the region, including Lake Horowhenua.Muaūpoko considers that its rohe includes the Lake and the Stream and that it holdsmana whenua and kaitiaki over them. The Lake is regarded by Muaūpoko as anancestral taonga. Counsel for Muaūpoko, Mr Bennion, quoted from a kaumātua,Marokopa Wiremu-Matakatea (whose comments are recorded in the relevantWaitangi Tribunal report),8 " if the [Lake] was to die [Muaūpoko] would cease toexist it's who we are, it's our life blood".[14] Raukawa represents the confederation of Ngāti Raukawa ki te Tonga iwi and25 hapū. They incorporated Raukawa in 1988. Raukawa claims to be entitled to asserttino rangatiratanga, kaitiakitanga and mana whenua over Lake Horowhenua and theHōkio Stream. While its claim is yet to be considered by the Waitangi Tribunal, wewere advised that it proceeds on the basis that the Lake, Stream and related catchmentsare related by whakapapa to Raukawa and that the Lake and the Stream are tūpuna.6 At 703.7 Waitangi Tribunal Muaūpoko report, above n 5.8 At 64 (footnote omitted).Raukawa asserts that those who hold mana whenua in the catchment are ofNgāti Raukawa descent and that they include a number of the hapū it represents.[15] Although they have competing claims to the water bodies in the Horowhenuaarea, both Muaūpoko and Raukawa, and those they represent, shared a commonobjective in this appeal. They and their members have a deep sense of grievance thatLake Horowhenua and the Hōkio Stream, and other waterways in the Horowhenuaarea, have been significantly compromised over a prolonged period. They considerthat the Lake is central to their mana, their mauri and their identity. They are opposedto the Lake and the Stream being treated differently to other freshwater bodies inNew Zealand through the operation of the vegetable exemption in the NPS-FM. Theysee the vegetable exemption as a licence permitting the ongoing pollution of theaffected water bodies.The Horowhenua vegetable growing area[16] There are a number of vegetable growing areas in the Manawatū-Whanganuiregion. One major area is adjacent to Lake Horowhenua and the Hōkio Stream. Over60 per cent of the brassica and green vegetable crops (including leafy greens, Chinesegreens, potatoes and onions) grown in the Manawatū-Whanganui region are grown inthis area. This represents some 20 per cent of New Zealand's supply of greenvegetables and the area is important for the year-round supply of green vegetablesthroughout the country.[17] Commercial vegetable growing in the area results in pollution enteringfreshwater — in particular Lake Horowhenua and the Hōkio Stream. It is estimatedby the growers that vegetable growing in the area causes somewhere between 23 and27 per cent of the nitrogen load discharging to the surrounding receiving environment.Growers say that they are aware of the adverse environmental effects that result fromtheir land use. They say that they have been endeavouring to make improvements totheir practices to reduce the impact of their activities on freshwater.The interveners[18] The first intervener is the Horowhenua 11 Part Reservation Trust (the Trust).It is the legal owner of Māori freehold land, including the bed of Lake Horowhenua,a strip of land around the original margin of the Lake and the bed of the Hōkio Stream.It represents the current owners of the bed of the Lake and Stream as well as theirtūpuna. There are approximately 2000 beneficiaries of the Trust (although it may bethat some of them are deceased). It supported Muaūpoko and Raukawa's appeal.[19] The second intervener is the Manawatū-Whanganui Regional Council (theRegional Council). It has statutory responsibilities under the RMA in respect of boththe Lake and the Stream. It appeared before us to advise on its relevant obligationsand on how it considers the vegetable exemption operates.[20] The third intervener is Horticulture New Zealand. It appeared before theHigh Court but advised us that it did not intend to take an active role on the hearing ofthe appeals. Rather it took a watching brief and agreed to abide the decision ofthe Court.Legislation relating to the Lake and Stream — The Waitangi Tribunal's 2017 Report[21] The history surrounding Lake Horowhenua and the Hōkio Stream is lengthyand complex. It has previously been considered by the High Court.9 Further,Edwards J captured aspects of the relevant history in her judgment. There was nochallenge to this part of the Judge's decision and we gratefully adopt her summary.She noted as follows:10[24] In 1898, following litigation under the Horowhenua Block Act 1896title to the bed of Lake Horowhenua was vested in [the trustees of the Trust]as a reserve for the purpose of a fishery easement for the benefit of "all themembers of the Muaūpoko Tribe who may now or hereafter own any part ofHorowhenua No XI." [25] In 1905, Lake Horowhenua was declared to be a "public recreationreserve" under the Horowhenua Lake Act 1905. A Domain Board wasestablished to control the activities of the Lake, with at least one-third of themembers to be Māori. This legislation was a source of contention and the9 Paki v Māori Land Court [2015] NZHC 2535 at [9]–[39].10 High Court judgment, above n 3 (footnotes omitted).following years saw growing conflict between Muaūpoko, the Domain Boardand various territorial authorities. In 1934 a Committee of Inquiry wasestablished to investigate these issues. In its report the Committeerecommended that the ownership of the Lake bed and the surrounding area beconfirmed as belonging to the trustees of the Trust.[26] However, it was not until the enactment of the Reserves and OtherLands Disposal Act 1956 that Māori ownership of specified areas of the Lakeand stream was formally recognised. Under s 18 of that Act, it was declaredthat land including the Lake bed and bed of the Hōkio stream were owned byMuaūpoko as beneficiaries of the Trust. Public access to the land and the Lakewas preserved with the surface of the Lake declared to be a public domain.Nothing in that provision was said to affect the fishing rights previouslygranted. The Act also established a new Domain Board.[28] In August 2013, the He Hokioi Rerenga Tahi (Lake HorowhenuaAccord) was signed. The Accord's five foundation partners are: the Trust, theLake Domain Board, Horowhenua District Council, [the] Regional Counciland the Department of Conservation. The purpose of the Accord is for theparties to come together to halt degradation and put in place remedialmeasures that will return Lake Horowhenua to a taonga.[29] the Waitangi Tribunal issued its report on a claim by Muaūpokointo the area in 2017. It recorded public concessions made by the Crown thatthe Crown had breached [Te Tiriti o Waitangi/]the Treaty of Waitangi and itsprinciples in relation to the Muaūpoko people. Recommendations were madefor the establishment of a contemporary Muaūpoko governance structure toact as kaitiaki for the Lake, stream, and associated waterways. Additionally,the Tribunal report recorded that Ngāti Raukawa ki te Tonga may also haveinterests in the area. [22] It is also appropriate to record that the Waitangi Tribunal, in its 2017 report,concluded, amongst other findings, as follows:(a) The Horowhenua Lake Act 1905 took control of Lake Horowhenuafrom its Muaūpoko owners and vested that control in a board, thusturning Muaūpoko's private property into a public recreation reserveand subordinating Muaūpoko's use of their private property (a taonga)to that of the public.11(b) This transfer was done without consent or compensation and was aserious breach of Te Tiriti o Waitangi/the Treaty of Waitangi (the11 Waitangi Tribunal Muaūpoko report, above n 5, at 453.Treaty), which left Muaūpoko essentially powerless to exercise tinorangatiratanga over their taonga.12(c) There were omissions from the 1905 Act. In particular, the Crownfailed to include prohibitions against pollution from entering the Lake,in breach of the principles of partnership and the duty of activeprotection in the Treaty.13(d) There were omissions from the Reserves and Other Lands DisposalAct 1956 as well. It provided no compensation for past acts oromissions of the Crown and it did not include provisions controllingpollution or the entry of water-borne pollutants into the Lake,notwithstanding that pollution was known to be a problem before theAct was passed.14(e) Causes of pollution include agricultural runoff, the build-up ofnutrient-rich sediment and other factors relating to farming and nearbyurban development. The key cause of the pollution was the dischargeof effluent (human waste) into the Lake between 1952 and 1987. TheCrown was complicit in the discharge of this effluent from atleast 1957.15(f) Muaūpoko has objected over the years to the cultural offence ofcontaminating waters used for food with human waste. The Crown wasaware of these protests. They were expressed through petitions,Domain Board meetings, litigation and in various Tribunal claims.16Discharges to water[23] This appeal concerns the discharge of pollutants into Lake Horowhenua andthe Hōkio Stream. Under s 15 of the RMA, no person may discharge any contaminant12 At 453.13 At 454.14 At 512.15 At 585.16 At 585–586.into water or onto land in circumstances which may result in that contaminant enteringwater, unless the discharge is expressly allowed by a national environmental standardor other regulations, a rule in a regional plan or a resource consent.17[24] The evidence before us suggested that there is only one consent to dischargeinto Lake Horowhenua but that there are numerous consents to discharge onto land inthe catchment area. The evidence also suggested that there are a number of otherdischarges in the area which may not have been properly consented in accordance withthe RMA.18[25] Regional councils are entrusted with the function of controlling the use of landfor the purpose of maintaining the quality of water in water bodies, as well asenhancing the quality of water and ecosystems within those water bodies.19 Regionalcouncils are primarily responsible for the control of discharges into water.20 Suchcontrol is achieved through regional policy statements and regional plans.21 Regionalplans invariably contain rules which seek to control such discharges and, informulating these rules, regional plans must "give effect to" any relevant nationalpolicy statements.22 The words "give effect to" used in the RMA mean to"implement".23 This is a strong directive, creating a firm obligation on those subjectto it.24National policy statements[26] The NPS-FM is a national policy statement under the RMA. It is important torecord its place in the planning hierarchy established under the RMA so that thesignificance of the document can be appreciated.17 Resource Management Act 1991, s 15(1)(a)–(b).18 Reference was made to a decision of the Environment Court: Wellington Fish and GameCouncil v Manawatū-Wanganui Regional Council [2017] NZEnvC 37.19 Resource Management Act, s 30(1)(c).20 Section 30(1)(f).21 Section 66(1)(a).22 Section 67(3).23 Environmental Defence Society Inc v New Zealand King Salmon Co Ltd [2014] NZSC 38, [2014]1 NZLR 593 [King Salmon] at [77].24 At [77], referring to Clevedon Cares Inc v Manukau City Council [2010] NZEnvC 211 at [51].[27] There is a three-tiered management system under the RMA — national,regional and district — moving from the general to the specific.25[28] Part 2 of the RMA sets out the Act's purpose — the promotion of thesustainable management of natural and physical resources — and its key principles.26The purpose and the key principles fall to be implemented through the variousplanning documents required under the legislation:(a) First, there are documents which are the responsibility of centralgovernment — national environmental standards, national policystatements, the New Zealand Coastal Policy Statement and nationalplanning standards.27 The purpose of national policy statements (suchas the NPS-FM) is to set out objectives and identify policies for mattersof national significance that are relevant to achieving the purpose ofthe RMA.28(b) Secondly, there are documents which are the responsibility of regionalcouncils — regional policy statements and regional plans.29 Regionalpolicy statements are also intended to achieve the purpose of the RMAby providing an overview of the resource management issues of theregion and policies and methods to achieve integrated management ofthe natural and physical resources of the region.30(c) Thirdly, there are documents which are the responsibility of territorialauthorities — specifically district plans.31 District plans are intendedto assist territorial authorities to carry out their functions in order toachieve the purpose of the RMA.3225 King Salmon, above n 23, at [14].26 Resource Management Act, ss 5(1) and 6–8.27 King Salmon, above n 23, at [11(a)].28 Resource Management Act, s 45(1).29 King Salmon, above n 23, at [11(b)].30 Resource Management Act, s 59.31 King Salmon, above n 23, at [11(c)].32 Resource Management Act, s 72.The effect is that, as one goes down the hierarchy of documents, greater specificity isprovided both as to content and locality — the general becomes increasinglyspecific.33 The RMA envisages the formulation and promulgation of a cascade ofplanning documents, each intended, ultimately, to give effect to s 5 and to pt 2 of theRMA more generally.34[29] As the Judge recorded, the content of national policy statements is set out ins 45A of the RMA.35 A national policy statement must state objectives and policiesfor matters of national significance that are relevant to achieving the purpose of theRMA.36 National policy statements can also state the matters set out in s 45A(2),namely matters that local authorities must consider in preparing policy statements andplans, methods or requirements in policy statements or plans, matters that localauthorities must achieve or provide for in policy statements and plans, constraints orlimits on the content of policy statements or plans, objectives and policies that mustbe included in policy statements or plans, directions to local authorities on thecollection and publication of information and on monitoring and reporting, and anyother matter relating to the purpose or implementation of the national policy statement.National policy statements may apply generally to specified districts or regions or toany specified part or parts of New Zealand.37[30] There are detailed provisions relating to the preparation of national policystatements (and other national directions). We discuss these provisions below.The NPS-FM[31] The NPS-FM replaced the National Policy Statement for FreshwaterManagement 2014. As noted, the NPS-FM came into force on 3 September 2020. Ithas since been amended by the Minister under s 53 of the RMA,38 but theseamendments have no relevance for present purposes.33 King Salmon, above n 23, at [14].34 At [30].35 High Court judgment, above n 3, at [35].36 Resource Management Act, s 45A(1).37 Section 45A(3).38 The NPS-FM was reprinted in February 2023 to incorporate amendments made by the Ministerpursuant to s 53 of the RMA.The fundamental concept and principles[32] The fundamental concept underlying the NPS-FM is Te Mana o te Wai.39 Thisconcept seeks to encapsulate the fundamental importance of water. It acknowledgesthat protecting the health of freshwater protects the health and wellbeing of the widercommunity and the mauri of the wai. Te Mana o te Wai encompasses six principlesrelating to the role of tangata whenua and other New Zealanders in the managementof freshwater. These principles inform the NPS-FM and its implementation.40 Theyare as follows:(a) Mana whakahaere.(b) Kaitiakitanga.(c) Manaakitanga.(d) Governance.(e) Stewardship.(f) Care and respect.There is a hierarchy of obligations in Te Mana o te Wai. It prioritises first, the healthand wellbeing of water bodies and freshwater ecosystems, secondly, the health needsof people and thirdly, the ability of people and communities to provide for their social,economic and cultural wellbeing now and in the future.4139 NPS-FM, above n 1, at cl 1.3.40 Clause 1.3(3)–(4).41 Clause 1.3(5).The objective and policies[33] The objective of the NPS-FM is to ensure that natural and physical resourcesare managed in a way that prioritises the hierarchy of obligations set out above.42There are 15 policies. Relevantly, they include the following:43Policy 1: Freshwater is managed in a way that gives effect to Te Mana ote Wai.Policy 2: Tangata whenua are actively involved in freshwater management(including decision-making processes), and Māori freshwater values areidentified and provided for.Policy 5: Freshwater is managed (including through a National ObjectivesFramework) to ensure that the health and well-being of degraded water bodiesand freshwater ecosystems is improved, and the health and well-being of allother water bodies and freshwater ecosystems is maintained and (ifcommunities choose) improved.Policy 9: The habitats of indigenous freshwater species are protected.Policy 12: The national target for water quality improvement is achieved.Policy 13: The condition of water bodies and freshwater ecosystems issystematically monitored over time, and action is taken where freshwater isdegraded, and to reverse deteriorating trends.Policy 15: Communities are enabled to provide for their social, economic, andcultural well-being in a way that is consistent with [the NPS-FM].Implementation[34] Part 3 of the NPS-FM focuses on implementation. It sets out a non-exhaustivelist of things that local authorities must do to give effect to the objective and policiesset out in the NPS-FM. However, nothing in part 3 prevents a local authority adoptingmore stringent measures than are required by the NPS-FM nor limits a local authority's42 Clause 2.1(1).43 Clause 2.2.functions and duties under the RMA in relation to freshwater.44 Relevantly, everyregional council must:(a) Engage with communities and tangata whenua to determine howTe Mana o te Wai applies to water bodies and freshwater ecosystems inits region.45(b) Give effect to Te Mana o te Wai and, in doing so, actively involvetangata whenua in freshwater management and engage withcommunities and tangata whenua to identify long term visions,environmental outcomes and other elements of the national objectivesframework.46(c) Develop long-term visions for freshwater in its region,47 throughengagement with communities and tangata whenua, and activelyinvolve tangata whenua in freshwater management.48(d) Adopt an integrated approach. This requires local authorities, amongstother things, to recognise the inter-connectedness of the wholeenvironment and to recognise interactions between freshwater, land andthe like.49(e) Manage land use and development in catchments in an integrated andsustainable way to avoid, remedy or mitigate adverse effects, includingcumulative effects, on the health and wellbeing of water bodies,freshwater ecosystems and receiving environments.5044 Clause 3.1(1)–(2).45 Clause 3.2(1).46 Clause 3.2(2)(a)–(b).47 Clause 3.3.48 Clause 3.4.49 Clause 3.5(1).50 Clause 3.5(1)(c).(f) Make or change its regional policy statement to the extent needed toprovide for the integrated management of the effects of the use anddevelopment of land and freshwater on receiving environments.51[35] The national objectives framework is set out in subpart 2 of part 3. It requiresthat every regional council engage with communities and tangata whenua at each stepof the process.52 Regional councils are required to undertake the following steps:53(a) Identify freshwater management units in their regions.(b) Identify values for each such unit.(c) Set environmental outcomes for each value and include them asobjectives in regional plans.(d) Identify attributes for each value and set baseline states for thoseattributes.(e) Set target attribute states, environmental flows and levels, and othercriteria to support the achievement of environmental outcomes.(f) Set limits as rules and prepare action plans as appropriate to achieveenvironmental outcomes.[36] Clause 3.11 is relevant to this appeal. It provides that, in order to achieveenvironmental outcomes, every regional council must set a target attribute state foreach attribute identified for a value and identify the site or sites to which the targetattribute state applies. The target attribute state for every value with attributes (exceptthe value human contact) must be set at or above the baseline state of that attribute.Pursuant to cl 3.11(4), if the baseline state of an attribute is below any national bottomline for that attribute, the target attribute state must be set at, or above, the nationalbottom line, subject however to three exceptions which are set out in cls 3.31, 3.3251 Clause 3.5(2).52 Clause 3.7.53 Clause 3.7(2).and 3.33 (the latter being the vegetable exemption). Every target attribute state mustspecify a timeframe for achieving that target attribute state or, if the target attributestate has already been achieved, state that it will be maintained as from a specifieddate. Timeframes for achieving target attribute states may be of any length or periodbut, if timeframes are long-term, they must include interim target attribute states (setfor intervals of not more than 10 years) which can be used to assess progress towardsachieving the target attribute state in the long-term. Every regional council mustensure that target attribute states are set in such a way that they will achieve theenvironmental outcomes for the relevant values and the relevant long-term vision.[37] There are then provisions specifying what regional councils must do to achievetarget attribute states and environmental outcomes, to make special provision forattributes affected by nutrients, for the setting for limits on resource use, thepreparation of action plans, the setting of environmental flows and levels, theidentification of take limits, for monitoring, for assessing trends and, relevantly, forresponding to degradation.54 In this regard, cl 3.20 provides that if a regional councildetects that a freshwater management unit or part of such unit is degraded ordegrading, it must, as soon as practicable, take action to halt or reverse the degradation(for example, by making or changing a regional plan, or preparing an action plan).Every action taken in response to a deteriorating trend must be proportionate to thelikelihood and magnitude of the trend, the risk of adverse effects on the environmentand the risk of not achieving target attribute states.The exemptions[38] Turning to the exemptions, cl 3.31 deals with large hydro-electric generationschemes and cl 3.32 deals with naturally occurring processes. Neither of these clauseswas in issue in the High Court or on this appeal.54 Clauses 3.12–3.20.[39] Clause 3.33 — the vegetable exemption — is in issue. Relevantly, it providesas follows:3.33 Specified vegetable growing areas(1) This clause applies only to the 2 specified vegetable growing areasidentified in Part 1 of Appendix 5.(2) When implementing any part of this National Policy Statement as itapplies to [a freshwater management unit] or part of [a freshwatermanagement unit] that is in, or includes, all or part of a specifiedvegetable growing area, a regional council must have regard to theimportance of the contribution of the specified growing area to:(a) the domestic supply of fresh vegetables; and(b) maintaining food security for New Zealanders.(3) Subclause (4) applies if:(a) [a freshwater management unit] or part of [a freshwatermanagement unit] is adversely affected by vegetable growingin a specified vegetable growing area; and(b) the baseline state of an attribute specified in Part 2 ofAppendix 5 in the [freshwater management unit] or part of the[freshwater management unit] where all or part of thespecified vegetable growing area is located is below thenational bottom line for the attribute; and(c) achieving the national bottom line for the attribute wouldcompromise the matters in subclause (2).(4) When this subclause applies, the regional council:(a) may set a target attribute state that is below the nationalbottom line for the attribute, despite clause 3.11(4); but(b) must still, as required by clause 3.11(2) and (3), set the targetattribute state to achieve an improved attribute state withoutcompromising the matters in subclause (2) of this clause.(6) This clause ceases to apply to a specified vegetable growing area onthe earlier of the following dates:(a) 10 years after the commencement date; or(b) the date National Environmental Standards (or otherregulations under the Act) come into force that:(i) apply to the specified vegetable growing area; and(ii) are made for the purpose of avoiding, remedying, ormitigating the adverse effects of vegetable growingon freshwater.[40] Appendix 5, part 1, describes the two specified vegetable growing areas,(including the Lake Horowhenua and the Hōkio Stream catchments). Part 2 specifiesthe attributes referred to in cl 3.33(3)(b). They are as follows: phytoplankton,periphyton, total nitrogen (trophic state), ammonia (toxicity), nitrate (toxicity),dissolved oxygen, cynobacteria and macroinvertebrates. Appendices to the NPS-FMdetail the attribute bands, the descriptions, and the national bottom lines for eachattribute. For example:(a) Phytoplankton (trophic state) in lakes has a national bottom line of12 milligrams chlorophyll-a per cubic metre (mg chl-a/m3) as anannual median and 60 mg chl-a/m3 as an annual maximum. The risk ofexceeding these figures is said to be as follows:55Lake ecological communities have undergone or are at high risk of aregime shift to a persistent, degraded state (without nativemacrophyte/seagrass cover), due to impacts of elevated nutrientsleading to excessive algal and/or plant growth (b) Total nitrogen (trophic state) in lakes has a national bottom line of750 milligrams per cubic metre (mg/m3) as an annual median inseasonally stratified and brackish water and 800 mg/m3 in polymicticwater. Total nitrogen (trophic state) in excess of these bottom lines issaid to result in the same effects as are noted immediately above wherephytoplankton (trophic state) exceeds the national bottom line.56(c) Nitrate (toxicity) in rivers has a national bottom line of 2.4 milligramsnitrate-nitrogen per litre (mg NO3-N/L) as an annual median and3.5 mg NO3-N/L as an annual 95th percentile. If the nitrate (toxicity)level exceeds these national bottom lines, but falls below 6.9 mgNO3-N/L, growth effects on up to 20 per cent of species are noted butit is recorded that there should be no acute effects.55 Appendix 2A, table 1.56 Appendix 2A, table 3.Above 6.9 mg NO3 – N/L, impacts on the growth of multiple speciesare expected and at levels above 20 mg/L, there is a risk of death tosensitive species.57(d) Cyanobacteria (planktonic) in lakes and lake fed rivers has a nationalbottom line of 1.8 cubic millimetres per litre (mm3/L) biovolumeequivalent of potentially toxic cyanobacteria or 10 mm3/L totalbiovolume of all cyanobacteria. If cyanobacteria (planktonic) levelsexceed these figures it is anticipated that high health risks will existfrom any contact with the freshwater.58How the vegetable exemption works in practice[41] In the High Court, Edwards J outlined the operation of the vegetable exemptionas relevant to Muaūpoko's and Raukawa's claims. She observed as follows:(a) The regional council decides whether the vegetableexemption applies.59(b) The vegetable exemption is permissive. If it applies, it permits, butdoes not require, the regional council to set a target attribute below thenational bottom line.60(c) The vegetable exemption mandates improvement. The target attributestate must be set to achieve improvement without compromising thedomestic supply of fresh vegetables or the maintenance offood security.61(d) The timeframes for compliance are to be set by the regional council.6257 Appendix 2A, table 6.58 Appendix 2A, table 10.59 High Court judgment, above n 3, at [125(a)].60 At [125(b)].61 At [125(c)].62 At [125(d)].(e) Other parts of the NPS-FM remain in force. The regional council muststill give effect to Te Mana o te Wai and actively involve tangatawhenua in decisions involving the freshwater bodies to which thevegetable exemption applies.63(f) The vegetable exemption is time-bound. It will expire in 2030 or whenit is replaced by national environmental standards or other regulationsunder the RMA.64[42] We agree with this analysis.The statements of claimMuaūpoko's statement of claim[43] Muaūpoko's statement of claim is dated 7 December 2020. Four causes ofaction were raised:(a) First, illegality. It was asserted that because the vegetable exemptionwas significant new policy not included in the draft NPS-FM andtherefore not reported on under s 52(1)(a) of the RMA, the Ministeracted unlawfully in changing the draft NPS-FM. In the alternative, itwas asserted that the Minister was required to consider whether torevisit some or all of the steps in the truncated process adopted by himunder s 46A(4) of the RMA and that he failed to do so. As a furtheralternative, it was asserted that consultation over the vegetableexemption did not meet the minimum standards required forconsultation with iwi under the RMA.(b) Secondly, a failure by the Minister to consider various matters said tobe relevant.63 At [125(e)].64 At [125(f)].(c) Thirdly, the Minister breached Treaty principles, including the duty toactively protect taonga.(d) Finally, discrimination by the Minister against Muaūpoko as a minorityin breach of s 19 of the New Zealand Bill of Rights Act 1990.Muaūpoko sought a declaration that the Minister acted unlawfully, a declaration thatthe Minister breached the Treaty, an order setting aside the Minister's decision toapprove the vegetable exemption and an order requiring the Minister to reconsider thematter in full consultation with Muaūpoko and in light of any other directions theCourt might make.Raukawa's statement of claim[44] In a separate proceeding, Raukawa made similar claims in a statement of claimdated 4 December 2020. Four causes of action were relied on:(a) Invalidity.(b) As an alternative to the first cause of action, unlawful delegation (or anirrelevant consideration).(c) As a further alternative to the first cause of action, that the Ministerapplied the wrong legal test, breached pt 2 and s 5 of the RMA, failedto consider relevant matters, considered irrelevant matters, and/orreached a manifestly unreasonable decision.(d) As a further alternative to the first cause of action, that the Minister'sdecision breached Treaty principles.Raukawa sought a declaration that the Minister's decision to include the vegetableexemption in the NPS-FM was unlawful, an order setting aside the Minister'sdetermination to approve the NPS-FM as it relates to the vegetable exemption andappendix 5, or alternatively, to set aside the vegetable exemption and appendix 5 withthe Minister being directed to reconsider the exercise of his statutory powers ofdecision-making in relation to these provisions. Directions were also sought that theMinister follow the process set out in the RMA and relevant Treaty principles,including consultation and engagement with Raukawa.The High Court judgment[45] The Judge carefully summarised the factual, historical and planningbackground. She commented that, in order to understand the challenges to thevegetable exemption, it was first necessary to understand how the exemptionoperated.65 Her approach to this interpretative task was informed by the part theNPS-FM plays within a "carefully structured legislative scheme" and against thebackdrop of its "thoroughgoing process of development". She treated the language ofthe policy as "carefully chosen".66[46] The Judge started with the plain meaning of the vegetable exemption and notedthat it applies only to two specified vegetable growing areas: Pukekohe andHorowhenua. When implementing the NPS-FM in these two areas, the relevantregional council "must" have regard to the importance of the contribution of thespecified growing area to the domestic supply of fresh vegetables and maintainingfood security for New Zealanders.67 It is then for the regional council to determinewhether the exemption applies.68 The exemption will apply where a freshwatermanagement unit is adversely affected by vegetable growing, the baseline state of aspecified attribute is below the national bottom line for the attribute, and achievingthat bottom line would compromise the domestic supply of vegetables and themaintenance of food security for New Zealanders.69 Where the exemption applies, theregional council may set a target attribute state below the national bottom line for thatattribute, although there is no requirement that it do so. If the regional council doesset a target attribute state below the bottom line, it must still set the target at a level toachieve an improved attribute state without compromising the domestic supply offresh vegetables. 7065 High Court judgment, above n 3, at [114].66 At [115].67 At [116]; and NPS-FM, above n 1, at cl 3.33(2).68 High Court judgment, above n 3, at [118].69 At [117].70 At [119].[47] The Judge recorded that the effect of cl 3.33(6) was the subject of debate at thehearing before her.71 This sub-clause sets out when the exemption expires. The Judgeconsidered that the effect of sub-cl (6) is that the exemption will expire after 10 yearsif no national environmental standards are in force. Thereafter, the regional councilwill not be able to set a target attribute state below the national bottom line.72 Undersub-cl (6)(b), if national environmental standards are in force, the exemptionwill expire.73[48] The Judge then turned to consider whether the vegetable exemption is contraryto s 5 of RMA. The argument being advanced by Muaūpoko and Raukawa was to theeffect that s 5(2)(a)-(c) contains environmental bottom lines. The Judge discussed theSupreme Court's judgment in King Salmon, noting that the issue before theSupreme Court was whether a board of inquiry was required to give effect to theNew Zealand Coastal Policy Statement, or whether it was entitled to take an "overalljudgment" approach which had reference to both the New Zealand Coastal PolicyStatement and pt 2 of the RMA.74 The Supreme Court concluded that the Board haderred in taking an overall judgment approach and that the Board was required toimplement the New Zealand Coastal Policy Statement and have exclusive regard tothe environmental bottom lines noted in that document.[49] In the Judge's view, the issues in King Salmon were different to those beforeher. She noted that there was no challenge to the validity of the New Zealand CostalPolicy Statement in King Salmon, and in any event, she did not consider thatKing Salmon was authority for the proposition that s 5(2) of the RMA containsenvironmental bottom lines. Rather, she considered that s 5(2) allows for the statementof environmental bottom lines in planning documents. The Judge did not consider thats 5 of the RMA contains environmental bottom lines and concluded that this groundof review could therefore not succeed.75 Nor did the Judge consider that the vegetableexemption otherwise contravened s 5.7671 At [121].72 At [122].73 At [124].74 At [130]–[131], referring to King Salmon, above n 23.75 High Court judgment, above n 3, at [12] and [145].76 At [146]–[152].[50] The Judge did not consider that the vegetable exemption was contrary to ss 6and 7 of the RMA. She noted the concepts behind Te Mana o te Wai, and the rolesgiven to tangata whenua in managing freshwater.77 She considered that therequirements set out in ss 6 and 7 are recognised and provided for in the NPS-FM andshe did not consider that the vegetable exemption departs from the obligationsimposed on regional councils set out in the document.78 She noted that regionalcouncils must set attributes in a way that gives effect to Te Mana o te Wai and theobjectives of the NPS-FM and that, at a regional level, the principles in ss 6 and 7 takeon "a more tailored and site-specific expression", and that is where "kaitiakitanga willfind voice".79[51] The Judge then turned to consider whether or not the vegetable exemption wasinvalid for any other reason. She recorded that there appeared to be a conflict betweenthe principles of Te Mana o te Wai, the hierarchy of obligations embraced in thatconcept, and the vegetable exemption, but commented that the conflict might be "moreapparent than real".80 She reiterated that the target attribution state set by each regionalcouncil had to be set in a way that gave effect to Te Mana o te Wai, but also in a waythat did not compromise the domestic supply of fresh vegetables and the maintenanceof food security. The Judge acknowledged that this is likely to be a difficult task, butthat striking the balance did not appear to be "completely unachievable".81 The Judgewent on to observe, by reference to King Salmon,82 that even if the NPS-FM wasinternally inconsistent, that did not make it ultra vires the RMA.83[52] The Judge did not consider that the Minister had failed to take in accountmandatory relevant considerations. She considered that the documentary recordrelating to the development of the vegetable exemption showed that the Minister wasaware of Muaūpoko's and Raukawa's concerns reflecting the matters in ss 6 and 7 ofthe RMA when deciding to include the vegetable exemption in the NPS-FM.84 The77 At [160].78 At [161] and [166].79 At [166]–[167].80 At [174]–[175].81 At [176].82 King Salmon, above n 23.83 High Court judgment, above n 3, at [177].84 At [184]–[185].Judge also considered that it was relevant that there was consultation with Muaūpokoand Raukawa after the in-principle decision was made and that the Minister waspersonally aware of the issues and grievances of iwi and hapū in the affected areas.85Further, the Judge did not consider that the vegetable exemption invited regionalcouncils to propose targets that will maintain a level of harm because, while the targetscan be set below the national bottom line, they must still provide for an improvedstate — a target that maintains the status quo will therefore be contrary to the directionset out in cl 3.33(4)(b) (which mandates an improved state without comprisingvegetable supply).86 The Judge considered that it was too early to conclude that therewould be a conflict with other obligations under the RMA, and she did not consider itclear how a target attribute state which provided for improvement could permita nuisance.87[53] The Judge noted that Muaūpoko and Raukawa have competing interests andthat those interests have been before the courts and will likely be considered in aforthcoming Waitangi Tribunal report into Raukawa's claim.88 The Judge consideredthat these competing claims were not directly relevant to any particular resourcemanagement outcome and that the Minister was therefore not required to makedeterminations as to the relevant merits of the respective claims when decidingwhether or not to include the vegetable exemption in the NPS-FM.89[54] Next, the Judge turned to consider whether there had been adequateconsultation. She started by noting the process for preparing national policystatements as prescribed by s 46A of the RMA.90 She noted that the Minister had togive notice of the proposed national direction and why it was considered to beconsistent with the purpose of the RMA. Those notified had to be given adequate timeand the opportunity to submit on the subject matter and the Minister retained adiscretion to consult at any time on the draft national direction.91 The Judge alsorecorded that the Minister did not dispute that the development of the vegetable85 At [187].86 At [191].87 At [192].88 At [199].89 At [200].90 At [209].91 At [210].exemption triggered a duty to reconsult, consistent with the Supreme Court'sdiscussion in New Zealand Pork Industry Board v Director General of the Ministryfor Primary Industries.92[55] The Judge recounted the development of the vegetable exemption. She saidthat there was no obligation on the Minister to undertake consultation on a proposedchange to the NPS-FM, but that the Minister retained a discretion to consult at anytime, which had to be exercised consistently with pt 2 of the RMA.93 The Judgediscussed the consultation undertaken after the in-principle decision was made. Sheconsidered it would have been preferrable if the consultation had occurred beforehand,noting that the fact that the in-principle decision was made without consultation gavethe impression that the vegetable exemption was "a done deal".94 She also noted thatthe time period for consultation was compressed, that the vegetable exemption wasnot included in the draft NPS-FM and thus was not subject to scrutiny by expertbodies, nor the subject of public submissions.95 Further, the Judge noted that had theapplicants been involved earlier in the process, alternatives to the vegetable exemptionmight have been considered.96[56] However, the Judge did not consider that the Minister had breached hisconsultation obligations, given the circumstances at the time the vegetable exemptionwas developed (during the Covid-19 pandemic).97 The Judge was also satisfied thatthe consultation following the in-principle decision was approached with an openmind.98 While the timetable was tight, she considered that the appellants had time toexpress their views and that the Minister had clearly considered them.99 The Judgealso noted that consultation is ongoing.100 She found that there was no breach of theduty to consult.10192 At [210]–[211] and [213], referring to New Zealand Pork Industry Board v Director General ofthe Ministry for Primary Industries [2013] NZSC 154, [2014] 1 NZLR 477.93 High Court judgment, above n 3, at [230].94 At [231]–[232].95 At [232].96 At [234].97 At [235].98 At [236].99 At [237].100 At [239].101 At [241].[57] The Judge went on to find that the vegetable exemption did not breach theprinciples of the Treaty. She repeated that the vegetable exemption requires regionalcouncils to set targets which allow for improvement in water quality over time, evenif the targets are set below the national bottom lines.102 She considered that other partsof the NPS-FM gave effect to the principles of the Treaty, including the matters set outin ss 6 and 7 of the RMA, and that those parts of the NPS-FM continue to apply.103She considered that the Minister took into account s 8 when reaching his decision.104[58] Finally, the Judge found that the decision to include the vegetable exemptionin the NPS-FM could not be impugned for unreasonableness because the decision wasclearly supported by the available evidence.105 She also considered that there waslogic underlying the Minister's decision to try and reconcile improving water qualitywithout comprising vegetable supply and that the vegetable exemption's permissivenature and time limitation recognised the difficulties in that task.106[59] As a result, the Judge dismissed the applications for review.107List of issues on appeal[60] Counsel for the parties agreed the following issues — namely whether theJudge erred in finding:(a) that the vegetable exemption did not contravene pt 2 of the RMA;(b) that the vegetable exemption was not inconsistent with the NPS-FM;(c) that it was not necessary for the Minister to consider the relativestrengths of the relationship of the hapū of Raukawa and Muaūpoko iwito Lake Horowhenua when deciding to include the vegetable exemptionin the NPS-FM;102 At [255].103 At [257].104 At [259].105 At [262]–[263].106 At [264].107 At [266].(d) that the Minister did not breach or fail to consider Treaty principles;(e) that the Minister adequately consulted on the vegetable exemption; and(f) that further public consultation was not required in relation to thevegetable exemption.[61] Our analysis will focus primarily on issues (e) and (f) above. We will touch onsome of the other issues, albeit briefly, given our views in regard to theconsultation issues.SubmissionsMuaūpoko's submissions[62] Mr Bennion argued that the Judge erred in finding that it was lawful for theMinister to direct the Regional Council to consider setting contaminate dischargelevels for Lake Horowhenua in accordance with the vegetable exemption. He arguedthat there was illegality, both in the way the exemption was added to the NPS-FM andin its content.[63] Mr Bennion submitted that the NPS-FM had to be publicly notified,independently assessed and reported on to the Minister. He noted that the draftNPS-FM, without the vegetable exemption, was notified on 5 September 2019 andthat public consultation ran for a period of some eight weeks, closing on31 October 2019. An independent advisory panel (the Panel), headed by a retiredEnvironment Court Judge, then prepared a report on the submissions made. The reportdid not specifically address concerns about commercial vegetable production.Mr Bennion submitted that the Minister was however in discussions with horticulturalgrowers.[64] A regulatory impact analysis was made available on 6 May 2020, advisingCabinet that, assuming then current horticultural methods continued, the nitratetoxicity bottom lines would essentially require wholesale conversion from vegetableproduction as a land use. On 18 May 2020, Cabinet approved an "in-principle"decision to allow regional councils to maintain freshwater quality at a level worse thanthe new national bottom lines for nitrogen in freshwater in Horowhenua andPukekohe. Thereafter, targeted consultation with Muaūpoko and Raukawa took placein June and July 2020. On 15 July 2020, the Minister received a briefing paper, settingout three policy options. Mr Bennion asserted that those options were not discussedwith iwi, but that the Minister nevertheless decided to adopt an option known as"Option 3". Thereafter an updated s 32 report was provided to the Minister, whichrecommended approval of the vegetable exemption, and, on 3 August 2020, theMinister recommended approval of the NPS-FM.[65] Mr Bennion submitted that the Judge erred when she concluded first that theMinister had complied with s 52(1)(a) and secondly that the vegetable exemption didnot require further public notification. He acknowledged that the Minister had awide-ranging ability to make changes to the draft NPS-FM, but argued that theMinister's powers were limited by the context of s 52 and the overall scheme of theRMA. He argued that the section did not deal with changes that are so significant thatthey require the Minister to revisit his statement about why the policy is consistentwith the RMA and that new matters of national significance or importance cannot bebelatedly introduced.[66] Further, Mr Bennion argued that the vegetable exemption does not follow fromother objectives and policies contained in the NPS-FM. He also argued thatconsultation with iwi did not meet the standards for consultation with Māori under theRMA, or generally. The fact the consultation requirement was breached, was, inMr Bennion's submission, given further impetus by the vulnerability of the taonga inquestion, the customary and legal rights involved and the policies and implementationprovisions of the NPS-FM itself. He submitted that the in-principle decision removedimportant issues from consultation and that not all relevant information was availableto the Minister or to iwi.Raukawa's submissions[67] Mr Enright for Raukawa argued that prima facie, the vegetable exemptionenables the setting of lower target attribute states for Lake Horowhenua and theHōkio Stream than the national bottom lines for all other parts of New Zealand (apartfrom Pukekohe). He submitted that for Raukawa, even an improvement belownational bottom lines does not constitute active protection of their freshwater taongaand that this cultural perspective is reflected in the requirement to place the health andwellbeing of freshwater as the first priority, under cl 2.1 of the NPS-FM.[68] Mr Enright took us through the NPS-FM in detail and then discussed thedecision-making process followed by the Minister. He noted that the vegetableexemption was introduced late in the process, after public and iwi consultation on thenotified version and following the release of the Panel's report. He submitted thatrather than engage in a second round of public and iwi authority consultation, orseeking further review by the Panel, the Minister followed an ad hoc process oftargeted consultation, which was limited and time constrained.[69] Further, Mr Enright submitted that the Minister and the officials wereconsidering the vegetable exemption from at least 18–19 March 2020, but thatRaukawa was not specifically advised of the proposed exemption until 28 May 2020.He noted that the in-principle decision to support the vegetable exemption was madeby Cabinet before any engagement or consultation with Raukawa. He argued thatRaukawa was not provided with a copy of the proposed wording for the exemptionand that it was not advised of the options being considered by the Minister, or theirrelated costs and benefits, prior to the final decision being made. He noted that thefinal MfE advice was provided to Cabinet on 15 July 2020, after consultation had beencompleted, and that the Ministers decision was confirmed on 28 July 2020, after thereceipt of advice in the s 32 report. He submitted that Raukawa was not given theopportunity to review or comment on matters asserted in the s 32 report, that thesequence followed created unreasonable time pressures and that material informationwas not provided to inform Raukawa of the relevant issues. He said that suchinformation as Raukawa was given was disclosed too late to influence the process.[70] Mr Enright also argued that the NPS-FM and the principles of Te Mana o teWai reflect s 5 and pt 2 of the RMA, by implementing a protective regime for thehealth and wellbeing of freshwater bodies and their ecology. In contrast, he arguedthat the vegetable exemption puts the health of New Zealanders above the health andwellbeing of freshwater bodies, at least in the near term. He argued that the vegetableexemption reverses the priority framework identified in the NPS-FM. By way ofoverlapping argument, Mr Enright argued that the decision to include the vegetableexemption was inconsistent with directive priorities established by the NPS-FM.[71] Mr Enright went on to discuss Treaty principles, arguing that the Minister wasrequired to have regard to them. He argued that there was a duty of active protectionon the Crown given the history of past breaches by the Crown of its obligations inregard to Lake Horowhenua.The Trust's submissions[72] Mr Hockly, on behalf of the Trust, noted the Trust's interests inLake Horowhenua. He discussed the Waitangi Tribunal's findings, in particular, thatthe Crown has an obligation under the Treaty to actively protect Lake Horowhenua.He pointed to the Waitangi Tribunal's conclusion that the Crown cannot delegate theduty of active protection and that active protection requires not only honourableconduct, but also fair processes from the Crown, including full consultation with, andwhere appropriate, decision making by those whose interests are protected.108Mr Hockly argued, by reference to the decision of the Privy Council in New ZealandMāori Council v Attorney-General.109[73] Mr Hockly discussed the NPS-FM in detail. He argued that there was tensionbetween Te Mana o te Wai and the vegetable exemption and submitted that theHigh Court erred when it concluded that a balance could be struck between the two.[74] Mr Hockly further argued that the consultation undertaken by the Minister wasinadequate in the circumstances of this case and that the nature of the engagemententered into did not amount to either cooperation or open dialogue. He wasparticularly critical of the in-principle decision made by Cabinet prior to consultationand without any structure and argued that this did not amount to fair process.108 See Waitangi Tribunal Muaūpoko report, above n 5, at 555; and Waitangi Tribunal TinoRangatiratanga me Kāwanatanga: The Report on Stage 2 of the Te Paparahi o Te Raki Inquiry,Pre-publication Version, Part 1 (Wai 1040, 2022) at 60, citing Waitangi Tribunal Te Tau Ihu o teWaka a Maui: Report on Northern South Island Claims, Volume 1 (Wai 785, 2008) at 4.109 New Zealand Māori Council v Attorney-General [1994] 1 NZLR 513 (PC).The Regional Council's submissions[75] Ms Johnston, for the Regional Council, took us through the Regional Council'sstatutory responsibilities under the RMA. She noted that cl 3.33(2) of the vegetableexemption introduces mandatory matters that the Regional Council must considerwhen implementing all stages of the national objectives framework insofar as it relatesto the Horowhenua vegetable growing area. She noted that the fundamental conceptof Te Mana o te Wai is not displaced by clause 3.33(2); rather the requirement to takeinto account the importance of the contribution of the vegetable growing area to thedomestic supply of fresh vegetables and to maintaining food security forNew Zealanders introduced by the subclause reflects the tensions at play. Sheobserved that no specific guidance is given to the Regional Council on how to makethe determination required under cl 3.33(3) of the vegetable exemption. She advisedthat the Regional Council is currently taking steps to implement the NPS-FM througha freshwater planning process within its region. She noted that the issues which theRegional Council must address are complex.The Minister's submissions[76] Mr Stephens for the Crown acknowledged that the Minister's proposal toinclude the vegetable exemption in the NPS-FM arose after the Minister was presentedwith the concerns raised by horticultural growers in Horowhenua and Pukekohe. Henoted that those concerns meant that the Government's freshwater reforms riskedmaterially reducing the quantity of fresh vegetables grown in New Zealand fordomestic supply and therefore increasing their cost. He argued that the apparent needfor a special provision for vegetable growing gave rise to a significant conundrum forthe Minister, because Lake Horowhenua and Hōkio Stream lie in the heart ofHorowhenua's vegetable growing area and because both Muaūpoko and Raukawaclaim mana whenua and kaitiaki rights and interests over the Lake and theHōkio Stream and regard them as taonga.[77] Notwithstanding the time constraints during the development of theexemption, Mr Stephens submitted that Muaūpoko's and Raukawa's opposition to theproposed vegetable exemption and their concerns about the state of their taonga wereput squarely to the Minister and to relevant officials on several occasions, including atface-to-face meetings attended by the Minister personally in Levin. He submitted thatthe Minister paid close attention to Muaūpoko and Raukawa's concerns and took theirviews into account, modifying the proposed vegetable exemption to make it atimebound measure. He submitted that the Minister's paper to Cabinet seekingauthorisation to submit the revised draft NPS-FM (which included a timeboundvegetable exemption) to the Executive Council properly summarised the concerns ofMuaūpoko and Raukawa, including that water bodies in their rohe of significantcultural importance to them would be afforded less protection than other water bodies,that their food basket was being harmed to provide a food basket for the rest ofNew Zealand and that the exemption transgresses their role as kaitiaki because thewaterways would remain degraded. He submitted that the Minister ultimatelyconcluded that a temporary exemption for Horowhenua was necessary to avoid asignificant risk to the supply and affordability of fresh vegetables for New Zealandersand that even with significant land use change and available on-farm mitigations, itwas simply not feasible for Horowhenua to meet the new nitrogen bottom lines in aforeseeable timeframe. He noted that the Minister did not consider it acceptable toweaken the bottom lines across New Zealand to correspond with existing nitrate levelsin freshwater in the Pukekohe and Horowhenua areas, because national water policywould then be a function of the lowest common denominator. He submitted that theMinister planned on further ongoing consultation with iwi and hapū to explore othernon-regulatory means of achieving desired outcomes for the affected areas and thatpotential regulatory intervention in the future was a feature of the timeboundvegetable exemption.[78] It was acknowledged that the vegetable exemption was not part of the draftNPS-FM, but it was submitted that the Judge did not err when she found that theMinister was not required to completely restart the process as a result of the proposedchanges. It was submitted that the RMA expressly recognises that followingconsultation, the Minister can make any changes to a proposed national policystatement as the Minister thinks fit and that it is not correct to characterise thevegetable exemption as introducing new matters of national significance orimportance, in the sense contemplated by either ss 6 or 45(1) of the RMA. It wasnevertheless acknowledged that the Minister was obliged to undertake a degree offurther consultation in relation to the vegetable exemption and that the Minister didso, recognising that the proposed vegetable exemption represented a meaningfulchange from the draft NPS-FM that had originally been published for consultation. Itwas submitted that the Minister was however permitted to make an in-principledecision, that the targeted consultation undertaken was genuine and approached withan open mind and that there is no evidence suggesting that the consultation wasnarrowed in the ways Muaūpoko now suggests, or that matters were "taken off thetable". It was argued that Muaūpoko and Raukawa were sufficiently informed andthat the timeframe for consultation was adequate.AnalysisConsultationRelevant statutory provisions[79] The recommendation of the issue of a national policy statement under s 52 ofthe RMA is for the Minister.110 The onus lies on the Minister to ensure that thestatutory process is followed.[80] In 2017 the RMA was amended and a new process for the preparation ofnational directions (including national policy statements) was put in place.111Notwithstanding that the new process is said to comprise a single process for preparinga new national direction, it gives the Minister a choice — either to follow therequirements set out in ss 47–51 of the RMA (which involves a hearing by a board ofinquiry) or to establish and follow a bespoke process that includes the steps set out ins 46A(4).112[81] In an affidavit sworn in the proceedings, the Minister explained that his initialpreference was for the board of inquiry process. However advice given to him byofficials projected that any board of inquiry process would take at least 12 months,that there would be limited time for early engagement with Te Kāhui Wai Māori andthe Freshwater Leaders Group to develop policy, and that it would be unlikely that anew NPS-FM could be achieved before the end of 2020. The Minister saw this as110 Resource Management Act, s 24(a).111 Resource Legislation Amendment Act 2017, ss 36–37.112 Resource Management Act, s 46A(3).inconsistent with the Government's commitment to deliver meaningful progress onfreshwater quality within its term. The Minister was persuaded that an alternativeprocedure could be designed that would incorporate key elements of the board ofinquiry process (including an independent advisory group to make recommendations)while arriving at an outcome faster than a board of inquiry could achieve.[82] Any bespoke process adopted by the Minister had to include the stepsdescribed in s 46A(4). This subsection requires:(a) the giving of notice to the public and iwi authorities of the proposednational direction and why the Minister considered that it wasconsistent with the purpose of the Act;(b) that those notified be given adequate time and opportunity to makesubmissions on the proposed national direction;(c) that a report and recommendations be made to the Minister on thesubmissions and on the proposed national direction; and(d) that the matters listed in s 51(1) of the RMA be considered, namely thatconsideration be given to the matters in pt 2, the proposed nationaldirection, any submissions received on the proposed national direction,any additional material provided by the Minister under s 47A(1)(b), anyevidence received and any other relevant matter.[83] Once this process had been completed, s 52 of the RMA provides that theMinister was required to consider the report and any recommendations made to himpursuant to s 46A(4)(c). He could then make any changes, or no changes, to theproposed national direction as he thought fit, or he could withdraw all or part of theproposed national direction and give public notice of the withdrawal, including thereasons for the withdrawal. Finally, if he was going to proceed, he had to undertakean evaluation of the proposed national direction in accordance with s 32 of the RMAand have particular regard to that evaluation when deciding whether to recommendthe national direction.The steps taken by the Minister[84] The steps taken by the Minister are discussed in detail by the Minister in hisaffidavit and by the Judge in her judgment.113 We summarise as follows.[85] On 5 September 2019, the Minister released a package of proposals for publicconsultation. The Government's overall approach was set out in a document entitledAction for healthy waterways: A discussion document on national direction for ouressential freshwater.114 As already noted, the package included a draft NPS-FM. Thedraft contained exemptions for large hydro-electricity generation schemes and fornaturally occurring processes. It also included a transitional exemption which wouldallow regional councils to set target attribute states that were worse than nationalbottom lines in respect of certain freshwater ecosystems but there was no vegetableexemption in the draft.[86] A few days later, on 9 September 2019, the Minister announced theappointment of the Panel, chaired by a former principal Environment Court Judge,David Sheppard. The Panel was tasked with considering submissions received on thedraft NPS-FM (and on the draft national environmental standards for freshwaterreleased at the same time) and providing a report and recommendations for theMinister to consider.[87] Consultation and the time for filing submissions on the Action for healthywaterways policy package ran for eight weeks, closing on 31 October 2019. Duringthis period, MfE ran a series of public meetings across the country. This consultationprocess involved a local government roadshow, with 17 general public meetings, eightmeetings for the primary sector and the rural community and 16 hui for iwi and Māori.Over 17,400 submissions were received. Relevantly, and as noted above, horticulturalgrowers in Horowhenua and Pukekohe raised concerns about the impact of theproposed new limits for nitrate-related attributes in the draft NPS-FM.113 High Court judgment, above n 3, at [80]–[113].114 Ministry for the Environment Action for healthy waterways: A discussion document on nationaldirection for our essential freshwater (September 2019).[88] In a briefing paper dated 16 December 2019, MfE officials advised the Ministerabout some of the matters that had been raised during the consultation period:(a) One of the matters recorded was the concern expressed by vegetablegrowers about the effect of the Action for healthy waterways policypackage on domestic vegetable production, especially in the Pukekoheand Horowhenua areas. As already noted, growers were concerned thatthe proposed bottom line for dissolved inorganic nitrogen wouldrequire a significant reduction in the application of fertilisers, makingexisting production unviable. They were also concerned that theproposed new national environmental standards for freshwater wouldput in place restrictions on the further intensification of rural land use.Overall, there was a concern that the Action for heathy waterwayspackage would decrease the quantities of vegetables grown inNew Zealand.(b) MfE noted that New Zealand is dependent on the domestic supply offresh vegetables, because of its geographical isolation and theperishability of such produce. MfE warned that the proposedfreshwater reforms could potentially result in a decline in theavailability and affordability of fresh vegetables. Officials did not seea straightforward solution that both stopped further decline infreshwater quality from commercial vegetable production and ensuredthat domestic vegetables remained available and affordable. It wasnoted that a final decision would likely require some trade-offs.Officials stated that they were therefore considering targeted support inthe areas most effected by the proposals. They advised that furtherwork was needed to refine the ideas and to determine their viability andtheir pros and cons.[89] On 27 February 2020, the Panel released its report on the draft NPS-FM.115Over 80 recommendations were made. Relevantly, the report recorded concern115 Raukawa presented to the Panel through an appointee, Jessica Kereama.expressed by some submitters about the inadequate time for consultation, consideringthe importance of the issues raised and their complexity. The report also recorded thatthe hierarchy of principles drafted as part of Te Mana o te Wai was vulnerable tochallenge and expressed reservations about the way in which the proposed NPS-FMexpressed priorities and obligations concerning Te Mana o te Wai. The Panelconsidered the submissions regarding the hydro-electricity exemption andrecommended that the exemption be limited only to the most significanthydro-electricity schemes in order to retain the exceptional nature of the provision.The Panel acknowledged that vegetable growing is a major emitter of nitrogen, but noarea specific vegetable exemption was discussed or proposed. There was a discussionin the report about the effectiveness of dissolved inorganic nitrogen limits. The Paneladvised that the limits operated as "blunt tool[s]". It recommended changing thedissolved inorganic nitrogen attribute tables from target-setting attributes to actionplan attributes to allow for the consideration of catchment and water bodyspecific variability.[90] On 8 March 2020, the Minister and the Minister of Agriculture received afurther briefing from MfE and from the Ministry for Primary Industries (MPI) calledEssential Freshwater 83: Policy decisions following consultation.116 This briefingpaper recorded the different views expressed, including those set out by the Panel, onwhether adopting the proposed dissolved inorganic nitrogen attribute limits would leadto improved ecosystem health and the cost impacts in so doing. MfE and MPI did notshare a common view.(a) MfE recommended adopting dissolved inorganic nitrogen as a limitsetting attribute with a national bottom line but with an exemption toallow for situations where the national bottom lines for all otherecosystem health attributes in the draft NPS-FM could still be achievedeven if dissolved inorganic nitrogen was below the nationalbottom line.116 Ministry for the Environment and Ministry for Primary Industries Essential Freshwater 83: Policydecisions following consultation (March 2020).(b) MPI did not support the inclusion of dissolved inorganic nitrogen as atarget setting attribute and instead supported managing nitrogen levelsthrough more stringent national bottom lines for nitrate and ammoniatoxicity. It recommended further ecological and economic impactanalyses, particularly in key regions, before dissolved inorganicnitrogen attributes and national bottom lines were progressed.Officials from MfE and MPI were tasked by the two Ministers with seeing if theycould come to joint view on the issue, as well as on other key unresolved issues.[91] On 18–19 March 2020, officials presented various options for amending thedraft NPS-FM to the Minister and to the Minister of Agriculture. The Ministers metwith senior officials from MfE and MPI to discuss matters and to try and find a wayforward. On either 18 or 19 March 2020, the Ministers decided that they wouldrecommend to Cabinet that the inclusion of a dissolved inorganic nitrogen attribute inthe NPS-FM be delayed for 12 months so that further work could be undertaken onthe underlying science. At the same time, they proposed strengthening the nationalbottom lines for the nitrate (toxicity) and ammonia (toxicity) attributes. Thesedecisions/proposals did not however alleviate the tension between the Government'sfreshwater objectives and ensuring that domestic vegetable production could meetdemand. The Ministers' proposal to strengthen the nitrate (toxicity) national bottomline meant that a solution would still have to be found to deal with the impact of theproposed NPS-FM on the availability and affordability of fresh vegetables. Officialsrecommended developing an exemption to the national bottom lines driving nitrogenreductions for small areas of key catchments where the majority of vegetable growingfor the domestic markets took place. The Ministers accepted this advice. Theydirected officials to draft a proposed exemption for specific vegetable growing areas.[92] The Minister was aware of the need to engage with Māori in the areas likely tobe affected. In particular, the Minister knew that Lake Horowhenua engagedimportant Māori interests and that the Lake was seriously degraded. He knew thattreated sewage from Levin had been discharged into the Lake and he was aware thatthe Lake continued to be adversely affected by pollution from vegetable growing anddairy farming. We discuss below the steps taken to consult with affected hapū and iwi.[93] MfE released a regulatory impact analysis on 6 May 2020. The analysis notedthat a vegetable exemption was not the MfE's preferred option. The upside of theexemption was nevertheless seen as ensuring that vegetable production was notcompromised; the potential downsides were that affected waterways would not beprotected from nutrient contamination and that the opportunity would be lost toencourage the spread of vegetable growing into other areas. It was however noted thatregional councils would still be able to set other requirements to achieve ecosystemhealth. It was also noted that, if a strengthened nitrate toxicity bottom line wasadopted, an exemption for areas such as Pukekohe and Horowhenua would need to beconsidered, because a strengthened nitrate toxicity bottom line would essentiallyrequire wholesale conversion from vegetable production as a land use in the affectedareas. It was considered that this would have negative implications for consumers,regional economies, health outcomes and domestic food security. It was also notedthat the mobility of vegetable production to other catchment areas was limited byfactors such as soil quality, climate and access to suitable markets. The impact onMāori of any vegetable exemption was recognised and further consultation with localiwi was recommended before a final decision was made.[94] Cabinet was scheduled to meet to make decisions on the proposed NPS-FM,the new national environmental standards for freshwater and the proposednew regulations.[95] The Minister and the Minister of Agriculture prepared a Cabinet paper puttingforward their recommendations and explained their reasons for them. They recorded:(a) That the Government had consulted on a possible new attribute tablefor dissolved inorganic nitrogen but that, on balance, it should not beprogressed at that time. Instead, that the appropriateness of a dissolvedinorganic nitrogen attribute with a national bottom line should bereassessed in 12 months' time, with the benefit in the interim of athorough analysis of the environmental and economic implications. Itnonetheless remained critical for the Government to take steps toimprove the management of nitrogen, because nitrogen policies in thethen current NPS-FM (and regional councils' implementation of them)were insufficient to provide for ecosystem health. In line with therecommendations of the Panel, the Ministers proposed strengtheningthe existing nitrogen (toxicity) attribute from 6.9 mg/L to 2.4 mg/L toprotect 95 per cent of species from toxic effects.(b) That notwithstanding the importance of managing nitrogen forecosystem health, national food security and the stability of supply forhuman health depends on the domestic production of adequate andaffordable supplies of fresh vegetables. The vegetable growing areasin the Pukekohe and Lake Horowhenua catchments are major supplyareas for domestic fresh vegetable production. It would not bepracticable to reduce nitrogen to meet national bottom lines in thesecatchments without significantly compromising vegetable production.The Ministers recommended enabling regional councils to maintainnitrogen-related attributes at levels worse than the proposed newnational bottom lines. The Ministers explained that further engagementwith local iwi was needed before final decisions could be made, so asto meet Treaty requirements and existing settlements.[96] The Cabinet Economic Development Committee accepted the Ministers'recommendations on 13 May 2020 and authorised them to make final policy decisionsand drafting changes as needed to the proposed NPS-FM, including a vegetableexemption, provided that the changes were consistent with the broad objectives of theproposals set out in the Cabinet paper. This was confirmed by Cabinet on18 May 2020 (the in-principle decision).[97] The Minister in his affidavit says that he then had a series of meetings with keystakeholders and iwi in May to update them and to seek their feedback on theAction for healthy waterways decisions, including the proposed vegetable exemption.We discuss these steps below.[98] The Minister in his affidavit also discussed a detailed background briefinggiven to him by MfE officials. He was not comfortable with defending the vegetableexemption as then proposed. He was conscious of the representations that iwi weremaking regarding the significance of freshwater taonga in Horowhenua and the historyof degradation and neglect in the area. He expressed his concern to officials that theproposed vegetable exemption could be viewed as giving polluters "a free ride to thedetriment of iwi and the environment". Accordingly, the Minister asked officials todevelop alternatives to the vegetable exemption as then proposed.[99] As a result, on 15 July 2020, MfE and MPI officials submitted a further briefingpaper to the Minister and to the Minister of Agriculture.117 The briefing paperhighlighted the dilemma that the Government faced. It also recorded the concernsexpressed by local iwi and the position of Te Kāhui Wai Māori. It identified threepolicy options as follows:(a) Option 1: an exemption to national bottom lines affected by nitrogenby inserting an enabling provision into the NPS-FM to give regionalcouncils the option of setting attribute states below nationalbottom lines.(b) Option 2: a statement in the NPS-FM requiring councils to "haveparticular regard" to the importance of vegetable growing to thenational supply when setting attribute states and limits, while stillsetting attribute states at the national bottom lines or higher.(c) Option 3: inserting a 10-year time limit into the exemption as outlinedin option 1. In the interim, the Government would work in partnershipwith local iwi/hapū and other stakeholders to develop regulationscontaining targets and limits that were appropriate for the area. Oncethe regulations were in place, the exemption would no longer apply.The briefing paper recorded the view that a timebound exemption to national bottomlines would send a strong signal to both iwi and vegetable growers that theGovernment was serious in its intention to improve water quality and that vegetablegrowers needed to use all practicable mitigations to contribute to improvement as well117 Ministry for the Environment and Ministry for Primary Industries Essential freshwater: NPS-FMprovision for vegetable growing in select areas (July 2020).as engage meaningfully to find solutions. It recorded that an exemption from thebottom lines should be accompanied by the Crown taking a proactive role in workingwith iwi and hapū in a partnership approach, along with the relevant councils andstakeholders, to find enduring solutions to the issues in Horowhenua.[100] The Minister made the decision to adopt option 3 and modify the proposedvegetable exemption in light of the feedback from Muaūpoko and Raukawa. Ratherthan being open-ended, the exemption would have a time limit of 10 years from thedate the NPS-FM came into force. Thereafter, regional councils would be required toset targets and plans to meet the national bottom lines over time, unless they hadalready been replaced by a national environmental standard or other regulations underthe RMA designed to avoid remedy or mitigate the adverse effects of vegetablegrowing on freshwater.[101] On 22 July 2020, the Minister received a s 32 report which had been preparedby Harrison Grierson Consultants Ltd and was entitled Action for heathy waterways:Section 32 evaluation.118 This report was required under the RMA.119 It included anaddendum prepared by MfE relating to the proposed vegetable exemption. It alsorecorded the disappointment of iwi and hapū with the way in which consultation hadoccurred in relation to the vegetable exemption.[102] On 28 July 2020, the draft NPS-FM (including the vegetable exemption) wasbrought before the Cabinet Legislation Committee for authorisation to submit the finalversion to the Executive Council. The Minister and the Minister of Agriculturesubmitted a Cabinet paper which, amongst other things, explained the conundrumwhich confronted the Government. It explained potential approaches which theyconsidered were open to the Government and recommended that the Governmentshould provide a mechanism to allow regional councils to set lower targets solely inPukekohe and Horowhenua for nitrogen attributes. It noted the engagement that hadoccurred with iwi and hapū and recorded the strong concerns that tangata whenua hadexpressed. The Cabinet Legislation Committee considered the paper and authorised118 Harrison Grierson Consultants Ltd Action for healthy waterways: Section 32 Evaluation(July 2020).119 Resource Management Act, s 52(1)(c).the submission of the final version of the NPS-FM, with a timebound exemption forthe vegetable growing areas in Pukekohe and Horowhenua, to the Executive Council.[103] On 3 August 2020, Cabinet confirmed the 28 July 2020 decision of theCabinet Legislation Committee. On the same day, the Governor-General in Councilapproved the NPS-FM. Notice was given in the Gazette and the NPS-FM came intoforce on 3 September 2020.The further consultation undertaken in relation to the vegetable exemption[104] Muaūpoko and Raukawa did not challenge the initial notification andconsultation process undertaken by the Minister and, notwithstanding the power tomake changes to the draft NPS-FM conferred by s 52(1)(b) of the RMA, the Ministerdid not dispute that the proposal to incorporate the vegetable exemption into theNPS-FM triggered a duty to reconsult. He said however, that this duty was dischargedby the targeted consultation that followed Cabinet's in-principle decision.[105] The Minister must have been aware of the broad concerns of the vegetablegrowers. Horticulture New Zealand first expressed their concerns to the Minister inAugust 2018. It told the Minister that, in its view, nitrogen allocation regimes inregional plans needed to consider more than nitrogen loads per hectare. Moreover,following the launch of the Government's programme for freshwater improvement,Horticulture New Zealand again advocated, in October 2018, to the Minister and tothe Minister for Primary Industries, in relation to the issue. It was then seeking anational regulatory approach specific to vegetable growing.[106] It seems that the Minister first became aware of the specific concerns raised byvegetable growers in Horowhenua and Pukekohe when he received the briefing paperdated 16 December 2019 which had been prepared by MfE officials.120 In lateFebruary 2020, the Minister received the Panel's report. It did not comment on thevegetable exemption (because it had not then been proposed), but it did comment onthe hydro-electricity exemption and on the appropriateness of the proposed dissolved120 Ministry for the Environment Essential Freshwater 81: Update on options to address keyconsultation themes (December 2019).inorganic nitrogen limits. The Minister received a further report from MfE and MPIon 9 March 2020,121 and, on 18–19 March 2020, officials presented various options tothe Minister for dealing with the matters raised as a result of the initial consultation.The proposals for the vegetable exemption evolved from this report and the decisionto develop a vegetable exemption was made on 19 March 2020.[107] The Minister was clearly aware of the need to engage with Māori in theaffected areas. It seems that the issue was discussed between the Minister and officialson 18–19 March 2020. As noted above at [92], the Minister knew thatLake Horowhenua engaged important Māori values and that the Lake wasseriously degraded.[108] Officials prepared a draft iwi engagement plan and sought advice from theOffice for Māori Crown Relations — Te Arawhiti. This advice was received on24 April 2020 and incorporated into MfE's approach for consultation. Emails werethen sent to Muaūpoko and Raukawa on 29 April 2020 seeking to organise meetingsso that discussions could be held regarding proposed changes to the draft NPS-FM.122The emails however did not refer to the specific concerns raised by the vegetablegrowers nor to any proposed vegetable exemption. Muaūpoko and Raukawa couldnot then have appreciated the import of the matters which MfE officials wished todiscuss with them because they received no advice in this regard from MfE officialsand because the summary of the submissions made following on from the initial publicnotice had not then been released. It was only released in early May 2020.123[109] The Minister says that he held a series of meetings with key stakeholders inMay 2020. He does not however provide any great detail of these meetings other thanto say that he met with the Iwi Leaders Group, the New Zealand Māori Council andthe Federation of Māori Authorities. There is nothing in the papers filed to suggestthat he met with Muaūpoko, Raukawa or the Trust at this stage.121 Ministry for the Environment and Ministry for Primary Industries Essential Freshwater 83,above n 116.122 Tim Tukapua, a member of Muaūpoko, says that there was a discussion in April 2020, but that theonly option then presented was mitigation of the effects of a vegetable exemption.123 Lindsay Poutama, the Chief Executive Officer of Raukawa, says that there was a "[s]ummary ofsubmissions to the [Independent Advisory] Panel" on 20 November 2019. There is howevernothing to suggest that this summary was published until May 2020.[110] MfE prepared talking points for the Minister for these meetings. There ishowever nothing to suggest that these talking points were given to those representingMāori interests, including Muaūpoko, Raukawa or the Trust. Also, as noted above,MfE released a regulatory impact analysis on 6 May 2020 discussing the proposedvegetable exemption. This document recognised the impact on Māori of any vegetableexemption and recommended further consultation; there is however nothing to suggestthat the analysis, or even a summary of it, was then made available to Muaūpoko,Raukawa or the Trust.[111] Officials from MfE and MPI had zoom calls with some iwi and hapū on15 May 2020. The purpose of these calls was to establish relationships, have an initialdiscussion about the proposed vegetable exemption and see how iwi would like tocontinue their engagement. It is not clear who these zoom calls were with.(a) Tim Tukapua, on behalf of Muaūpoko, says that Muaūpoko boardmembers participated in a zoom telephone conference with MfEofficials about the proposed vegetable exemption, but only on22 May 2020 and 24 June 2020.(b) Bryan Smith, MfE's chief advisor for freshwater strategy, hasconfirmed that he did not have a zoom call with Raukawa on15 May 2020. Rather he says that he had emailed a representative ofRaukawa on 29 April 2020 seeking to set up a meeting to discuss thevegetable exemption, but that he had difficulties arranging a time,because of conflicting schedules and because of the Covid-19pandemic. He also notes that officials and iwi representatives had manycompeting priorities. Mr Smith was only able to speak to Raukawa'srepresentative, Lindsay Poutama, on 28 May 2020.(c) It is not clear to what extent the Trust was involved. It seems that itmay have been consulted at the same time as Muaūpoko.[112] Notwithstanding the very limited involvement with affected hapū and iwi, theMinister, together with the Minister of Agriculture, recommended to the CabinetEconomic Development Committee in mid-May 2020 that it make an in-principledecision authorising them to make final policy decisions and to draft changes to theNPS-FM, including to put in place a vegetable exemption. Cabinet confirmed thein-principle decision on 18 May 2020. Muaūpoko, Raukawa and the Trust knewnothing about this at the time.[113] We agree with Edwards J that it would have been preferable if consultation hadoccurred beforehand.124 The in-principle decision gave the impression that theinclusion of a vegetable exemption in the NPS-FM was "a done deal".125[114] On 3 June 2020, counsel for the Tamarangi hapū (who are also based nearLake Horowhenua but are not associated with either Muaūpoko or Raukawa) sent aletter to the Minister outlining the hapū's opposition to the proposedvegetable exemption.[115] On 4 June 2020:(a) Te Kāhui Wai Māori sent a letter to the Minister expressing the viewthat the Government should reconsider its approach to the proposedvegetable exemption.(b) Mr Poutama of Raukawa received a copy of an MfEdocument — Essential freshwater regulation: information forhorticultural growers. However, he received the document from an iwimember and not from MfE. The document referred to thein-principle decision.[116] On 10 June 2020, Mr Poutama had a meeting with MfE officials, includingMr Smith. Raukawa was then advised, albeit in general terms only, about the proposedvegetable exemption.124 High Court judgment, above n 3, at [231].125 At [232].[117] On 15 June 2020, a copy of a proposed policy summary in relation to thevegetable exemption was sent by MfE officials on a "FYI" basis to Nicholas Peet, theGroup Manager Strategy and Regulation, for the Regional Council. Mr Peetresponded to MfE by email, noting the potential implications of the proposal for theRegional Council's planning documents and also for a plan change known as "PC2",which had been notified in 2019 to address issues relating to the management ofnutrients from existing intensive farming land uses within targeted catchments,including Horowhenua. Mr Peet requested information from MPI regarding theevidential basis for the proposed vegetable exemption.[118] On 16 June 2020, MfE sent an email to Muaūpoko and Raukawarepresentatives attaching brief background information on the proposed vegetableexemption. MfE apologised for the delay in providing this information. One of thedocuments sent was a five page summary document, titled Further information on theProposed Policy Thinking for Horowhenua. The document referred to modellingundertaken to assess the quantity of nitrogen in Lake Horowhenua and to the impactsof reducing nitrogen concentrations in the Lake. The underlying data was notdisclosed. Mr Poutama was told in the accompanying email that the modellingrecorded "initial results" only and that it was in the process of "being finalised".[119] Horticulture New Zealand became aware that the Government was consultingwith iwi and hapū. On 19 June 2020, it offered to meet with iwi and hapū during thisperiod, but was told that the priority for iwi and hapū was the conversations that theywere having with the Government.[120] Also on 19 June 2020, Mr Peet met with MPI officials via zoom to discuss theproposed vegetable exemption. They discussed whether putting an exemption in placefor one industry had the potential to undermine the progress being made with PC2 inreducing nutrient discharges from commercial vegetable growing in targetedcatchments, the Regional Council's concerns about the lack of evidence for anyexemption and whether MfE should look for a national and not a regional solution forreducing the impacts of fresh vegetable production.[121] On 24 June 2020, Mr Smith of MfE and a MPI representative attended aMuaūpoko board meeting in Levin in relation to the vegetable exemption. Variousconcerns were discussed. The data used to support the policies and models wascriticised as being of poor quality and old, and MfE was told that it needed bettermonitoring, undertaken by someone independent of the Regional Council. A numberof board members expressed the view that they needed "to be at the table equally".They said that they also needed to be part of creating any solution. Officials werereminded that the Lake is privately owned.[122] On 1 July 2020, Mr Peet raised further concerns with MfE and MPI officialsabout the proposed vegetable exemption.[123] On 2 July 2020, Mr Smith sent an email to all iwi and hapū representatives,including Muaūpoko and Raukawa representatives, seeking further feedbackfollowing on from the earlier discussions.[124] On 3 July 2020, Muaūpoko sent a letter to Mr Smith expressing concern aboutthe proposed exemption and seeking a meeting with the Minister. On the same dayRaukawa sent a follow up letter to Mr Smith. Mr Poutama also had a telephonediscussion with Mr Smith. In its letter, Raukawa expressed its concerns about theproposed vegetable exemption. Raukawa sought the opportunity to meet with theMinister to discuss the proposals. It requested all correspondence between theMinister's office and officials from MfE and MPI in relation to the vegetableexemption. The request extended to records of engagement between the Minister'soffice, MPI, the Regional Council and industry lobby groups.126[125] Muaūpoko, Raukawa, the Trust and other interested parties met with theMinister in Levin on 7 July 2020. A background briefing paper was prepared for theMinister. It does not seem to have been made available to other participants. At themeeting Raukawa representatives queried how the Government's plan impacted on the126 Mr Poutama in one of his two affidavits states that further information was provided to Raukawaby MfE on 6 July 2020. He annexes a copy of the further information provided. It is the samedocument as is referred to in [118] above. Mr Smith does not suggest that any further informationwas provided to Raukawa on 6 July 2020. We suspect that Mr Poutama is in error.mauri of the water. The Minister responded that he viewed the economy as a whollyowned subsidiary of the environment and that the new NPS-FM would introduce anumber of changes which would reflect that view by putting the health of the waterand the environment first. Raukawa suggested that the proposed vegetable exemptiondid not do that. The rationale for the exemption was discussed by the Minister.Raukawa expressed concern about a lack of consultation and the compressedtimeframe. The comment was made that if the NPS-FM was to be successful, allparties needed to be informed and all needed to have the right information. Thepossibility of a review period being built into the vegetable exemption was discussed.The Minister indicated that this was a possibility, in principle. In the course of themeeting, Raukawa again requested copies of the modelling data, as well as the otherdata referred to in the further information document which had been made availableto their representatives.[126] On 8 July 2020, Raukawa sent a letter to the Minister thanking him forattending the meeting but recording that Raukawa's position remained unchanged.The letter expressly advised that Raukawa did not support the vegetable exemptionand that it continued to maintain that, as a Treaty partner, the consultation with it "waslacking". It recorded Raukawa's preparedness to explore alternative pathways to dealwith the Lake Horowhenua catchment, including ways in which the proposedvegetable exemption could be modified or implemented.[127] Between 10 July and 13 July 2020, Raukawa's environmental consultants,Gregory Carlyon and Dr Fleur Maseyk, spoke with officials from MfE and MPIregarding Raukawa's concerns about the proposed vegetable exemption. Ultimately,on 13 July 2020, Mr Carlyon sent a letter to Mr Smith objecting to the proposedvegetable exemption.[128] On 14 July 2020, MfE and MPI officials had further zoom meetings withMuaūpoko and the Trust to discuss the proposed exemption. On the following day,15 July 2020, MfE and MPI officials had a zoom meeting with Mr Carlyon andDr Maseyk, also in relation to the exemption.[129] As noted above at [99], on 15 July 2020 MfE and MPI officials presented abriefing paper to the Minister and to the Minister of Agriculture, setting out the threeoptions identified by the Ministry. There is nothing to suggest that this briefing paper,was given to Muaūpoko. It seems something may have been given by an official fromMPI to Raukawa although the affidavits are not clear on this issue. Raukawa was nothowever given the wording of the proposed vegetable exemption; nor was it given theother material which would need to be incorporated into the NPS-FM if the exemptionwas to be adopted, for example, maps of the areas intended to be covered by theexemption. Nevertheless the briefing paper recorded that MfE had tested option 1with iwi and hapū and that they did not support an exemption as there proposed.[130] On 16 July 2020, counsel for Raukawa sent a letter to the Minister objectingto the vegetable exemption proposals. It was noted that the letter had been preparedunder relative urgency "absent full disclosure by the Crown of a relevant paper-trail".It was recorded that Raukawa had only recently been informally notified about theproposed vegetable exemption and that Raukawa had not seen a written copy of theproposed exemption. It was also noted that the exemption had not been publiclynotified in September 2019 and that it had not been considered by the Panel. Concernwas expressed that the process followed did not comply with the Crown's consultationobligations as a partner to the Treaty. Inter alia, it was asserted that, from Raukawa'sperspective, the exemption had "come from left field", without due diligence as to thehistory of the area, without adequate science to support it and without adequateconsultation with those affected. The possibility of proceedings was raised.[131] The report under s 32 of the RMA, which was required pursuant to s 52(1)(c)of the RMA before the NPS-FM could be recommended for approval, was receivedby the Minister on 22 July 2020. The s 32 report was not made available to Raukawaor, it seems, to Muaūpoko.[132] As already noted, on 3 August 2020, Cabinet confirmed its 28 July 2020decision and approved the NPS-FM. The NPS-FM was then notified as approved inthe Gazette. It was published online and announced by the Government on5 August 2020.[133] Raukawa subsequently corresponded with the Minister and on 14 August 2020,Raukawa's lawyers sent an Official Information Act request to the Minister.[134] On 2 September 2020, MPI informed Mr Peet of the Regional Council thatthey had completed the modelling report used to justify the vegetable exemption andasked Mr Peet to participate in a peer review of the report. He declined to do so.[135] The final modelling report for Lake Horowhenua including the underlying datawas provided to Raukawa on 24 November 2020 by email from MfE.[136] On 18 December 2020, Raukawa received a copy of the recommendationsigned by the Minister requesting that the Governor-General in Council approvethe NPS-FM.Did the further consultation undertaken by the Minister comply with the RMA?[137] Like the Judge, we accept that the Minister consulted with Muaūpoko andRaukawa, and that, to an extent, he took into account their views.127 We also acceptthat, on the evidence, the Minister acted in good faith throughout. Nevertheless, wedo not consider that, in the circumstances of this case, the further consultation that wasundertaken in regard to the vegetable exemption was appropriate or sufficient.[138] Open processes and opportunities for public input have been incorporated intothe RMA in a number of contexts; they were obviously seen as important values bythose who framed the Act.128 When national policy statements are being prepared,there are express requirements for notification, submission and consultation:(a) If the Minister opts for the board of inquiry process under s 46A(3)(a),as soon as practicable after its appointment, the board of inquiry mustensure that public notice of the proposed national direction and inquiryis given, publish a summary giving the prescribed information andrecording that submissions may be made in writing by any person, and127 High Court judgment, above n 3, at [237].128 King Salmon, above n 23, at [15].fix a closing date for submissions.129 Any person making a submissionis entitled to ask to be heard.130 The board of inquiry is required to giveat least 10 working days' notice of the dates, times and place of thehearing of the inquiry.131(b) If the Minister establishes a bespoke process under s 46A(3)(b), he hasto notify the public and iwi authorities of the subject matter of thenational policy statement, give notice of the reasons why he considersit is consistent with the Act, and give those notified adequate time andopportunity to make a submission.(c) The Minister also has a discretion to consult at any time under s 46A(5).[139] If consultation is to be adequate, the opportunity for input must be meaningful.More than mere notification is required.132 Those being notified/consulted must havea reasonable opportunity to state their views.133 They must be properly informed aboutwhat is proposed so that they can make appropriate decisions and respond fully. Thedecision maker must ensure there is adequate time for the submission/consultationprocess. In some cases, a single conservation may suffice; in other contexts,consultation may demand months or years of consultation.134 The decision-makermust keep an open mind and be ready to change or start afresh.135 The obligation toconsult and/or to notify, receive and consider submissions can trigger an obligation tostart afresh and reconsult where a substantial change to the original proposalis contemplated.136129 Resource Management Act, ss 46A(4)(a)–(b) and 48.130 Section 49(2).131 Section 50(2).132 Constitutional Law and Administrative Law — A to Z of New Zealand Law — ProceduralImpropriety (online ed, Thomson Reuters) at [17.25.4.9(2)].133 Port Louis Corp v Attorney-General (Mauritius) [1965] AC 1111 (PC), [1965] WLR 67 at 1124;and Board of Trustees Phillipstown School v Minister of Education [2013] NZHC 2641 at [60].134 Constitutional Law — A to Z of New Zealand Law — Procedural Impropriety, above n 132, at[17.25.4(2)], citing Wellington International Airport Ltd v Air New Zealand Ltd [1993] 1 NZLR671 (CA) at 675.135 Wellington International Airport Ltd, above n 134, at 675.136 New Zealand Pork Industry Board, above n 92, at [173].[140] The leading case in this country on the obligation to consult is the decision ofthis Court in Wellington International Airport Ltd v Air New Zealand Ltd.137 Althoughit was decided in a very different context, the Court noted that consultation does notrequire that there be agreement but that it clearly requires that there be more than mereprior notification. The Court cited from a Privy Council decision, Port LouisCorp v Attorney-General of Mauritius, as follows: 138 If there is a proposal to alter the boundaries of a town, or the boundaries ofa district, or the boundaries of a village, such alteration must not be made untilafter consultation with the local authority concerned. It follows that the localauthority must know what is proposed before they can be expected to givetheir views. This does not however involve that the local authority are entitledto demand assurances as to the probable form of the solutions of the problemsthat may be likely to arise in the event of there being an alteration ofboundaries. The local authority must be told what alterations of boundariesare proposed. They must be given a reasonable opportunity to state theirviews. They might wish to state them in writing or they might wish to statethem orally. The requirement of consultation is never to be treatedperfunctorily or as a mere formality. The local authority must know what isproposed: they must be given a reasonably ample and sufficient opportunityto express their views or to point to problems or difficulties: they must be freeto say what they think.The Court went on to observe that, for consultation to be meaningful, there must beavailable to the other party sufficient information to enable it to be adequatelyinformed so as to be able to make intelligent and useful responses.139[141] What constitutes adequate consultation will depend on the context.140 In thisregard we note the following:(a) Lake Horowhenua's and the Hōkio Stream's long and complicatedhistory, including the earlier statutes, noted at [21] above.(b) Both Muaūpoko and Raukawa claim mana whenua and kaitiaki overthe Lake and the Stream. These matters were important given ss 6–7of the RMA.137 Wellington International Airport Ltd, above n 134.138 At 674, citing Port Louis Corp, above n 133, at 1124.139 Wellington International Airport Ltd, above n 134, at 676.140 New Zealand Pork Industry Board, above n 92, at [168].(c) The fishery rights in the Lake are vested in Muaūpoko and the beds ofthe Lake and the Stream are vested in the Trust. Existing property rightsconferred by statute were affected.(d) Lake Horowhenua is a taonga but it has long suffered from pollution.It is now badly polluted. The Crown has been complicit in thatpollution. Muaūpoko has protested but to no apparent avail. Theobservations of the Privy Council in New Zealand MāoriCouncil v Attorney-General were apposite. The Court was thereconsidering the Crown's obligations under the Treaty to protect theMāori language as a taonga. After setting out the English version ofTreaty in full, the Privy Council said as follows:141While the second article refers to "other properties", the[Māori] text uses the word "taonga" and in the reconstructionof that text the word "taonga" is translated as treasures In Their Lordships' opinion the "principles" [of the Treaty]are the underlying mutual obligations and responsibilitieswhich the Treaty places on the parties. They reflect the intentof the Treaty as a whole and include, but are not confined to,the express terms of the Treaty. Foremost among those "principles" are the obligationswhich the Crown undertook of protecting and preserving[Māori] property, including the [Māori] language as part oftaonga . It is therefore accepted that the Crown incarrying out its obligations is not required in protectingtaonga to go beyond taking such action as is reasonable in theprevailing circumstances. While the obligation of the Crownis constant, the protective steps which it is reasonable for theCrown to take change depending on the situation which existsat any particular time. [I]f as is the case with the [Māori]language at the present time, a taonga is in a vulnerable state,this has to be taken into account by the Crown in deciding theaction it should take to fulfil its obligations and may wellrequire the Crown to take especially vigorous action for itsprotection. This may arise, for example, if the vulnerable statecan be attributed to past breaches by the Crown of itsobligations, and may extend to the situation where thosebreaches are due to legislative action. Indeed any previousdefault of the Crown could, far from reducing, increase theCrown's responsibility.141 New Zealand Māori Council, above n 109, at 517.The matters addressed by the Privy Council were relevant context inthe circumstances of this case. They should have been taken intoaccount pursuant to s 8 of the RMA.(e) The proposed NPS-FM had as its underlying concept Te Mana o te Wai,which prioritises the health and wellbeing of water bodies andfreshwater ecosystems over the health needs of people and the abilityof keeping communities to provide for their social, economic andcultural wellbeing. It may be arguable that the vegetable exemption isin conflict with this underlying concept, with the related principles andwith the priority accorded to the concept's operation by the NPS-FM.(f) The proposed NPS-FM recognised the role Māori were to play in themanagement of freshwater and spelt out how Māori were to be involvedin decisions relating to freshwater.(g) The underlying water quality mitigation and remediation issues arecomplex. The data underlying the modelling undertaken was notavailable at the time. It could not be provided to either Muaūpoko orRaukawa, despite requests for the same. Nor could it be provided tothe Regional Council.Given these contextual issues, we agree with Muaūpoko and Raukawa that there wasa need for extra diligence when undertaking the required consultation. Although theMinister was clearly anxious to advance water quality reforms during theGovernment's first term, it was a situation which, in our view, required considerablecaution notwithstanding the possibility of delay.[142] Further, we are not satisfied that Muaūpoko, Raukawa and the Trust were givensufficient information, in sufficient time, to properly consider the same and toformulate their respective responses to the proposed vegetable exemption. Much ofthe detailed information only became available to Muaūpoko and Raukawa as a resultof the present proceedings being issued. At the time that the Minister was consultingwith them, initially in May 2020, and then in more detail in June and July 2020, theyhad little information. They certainly did not have all of the materials which wereavailable to the Minister and to the Government through MfE and MPI. When theydid get some of the information, they had very little time to consider it, to respondfully and to identify and investigate alternative options.[143] There is a further concern. The vegetable exemption effectively introduced anew matter of national significance in certain situations — the importance of thecontribution from the two growing areas to the domestic supply of fresh vegetablesand the maintenance of food security for New Zealanders. It is not apparent whetherthought was given to how regional councils were to inform themselves in relation tothese matters. Further, and as we have noted, the requirement that the relevant regionalcouncils take these matters into account when setting attributes below the nationalbottom lines set out in the NPS-FM potentially cut across the fundamental concept onwhich the proposed NPS-FM was based and the principles, objectives and policies putin place to advance that fundamental concept. In these circumstances, we considerthat consideration should have been given by the Minister to the powers vested in himby s 52(1)(b)(ii) of the RMA — namely withdrawing all or part of the proposedNPS-FM and giving public notice of the withdrawal, including the reasons for thewithdrawal. The Minister could then have gone back and undertaken afresh thevarious steps envisaged by s 46A(4). He would then have had the advantage of widerrather than targeted consultation and of a report and recommendations on the proposedvegetable exemption. There is nothing in the affidavits filed to suggest that anyconsideration at all was given to this possibility. Any withdrawal would have delayedmatters, but given the long history attaching to Lake Horowhenua and the HōkioStream, further delay may have been unavoidable.Conclusion[144] For the reasons we have set, we consider that the further consultationundertaken by the Minister was inadequate and that it failed to comply with the RMAand with the Minister's obligations at law to properly consult with those affected bythe proposed vegetable exemption. We disagree with the Judge's finding that therewas no breach of the duty to consult. As a result, we have concluded that the vegetableexemption should be quashed and that the Minister should be directed to reconsiderwhether a vegetable exemption is required and if so, in what form such exemptionshould be.Other issues[145] We comment briefly on some of the other issues raised by the parties:(a) Mr Enright submitted that s 5 and pt 2 of the RMA containenvironmental bottom lines, which were breached by the vegetableexemption. We agree with Edwards J that they do not, for the reasonsthe Judge gave at [137]–[138] of her judgment.(b) It was argued before us that the vegetable exemption is inconsistentwith other parts of the NPS-FM. We have accepted above that that isarguable. We take this issue no further, because it is unnecessary for usto resolve it given the views we have reached in relation to consultationand because it may be raised and considered in the context of anyfurther consultation. We accept that conflicts between policies arelikely to be rare, if those policies are properly construed. Any apparentconflict between policies may dissolve if close attention is paid to theway in which they are expressed.142(c) In relation to whether or not the Minister should have considered therelative strengths of Muaūpoko's and Raukawa's claims toLake Horowhenua, we agree with Edwards J, for the reasons she gaveat [200] of her judgment, that the Minister was not required to do so.(d) It is not necessary for us to address the other Treaty considerations thatwere raised on appeal, given that these considerations are likely to beraised in any further consultation undertaken.142 King Salmon, above n 23, at [129]; and Port Otago Ltd v Environmental Defence Society Inc[2023] NZSC 112 [2023] 1 NZLR 205 at [63].Result[146] The appeal is allowed.[147] Clause 3.33 and Appendix 5 of the National Policy Statement for FreshwaterManagement 2020 are quashed.[148] The Minister for the Environment is directed to reconsider whether thereshould be an exemption from the National Policy Statement for FreshwaterManagement 2020 for the vegetable growing areas in Horowhenua and Pukekohe and,if there is to be an exemption, what form such exemption should take.[149] The first respondent must pay costs to the appellants, the secondrespondent/cross-appellant, the first intervenor and the second intervenor, each for astandard appeal on a band A basis, together with usual disbursements. We certify forsecond counsel for the appellant and the second respondent/cross-appellant.Solicitors:Bennion Law, Wellington for the AppellantCrown Law Office | Te Tari Ture o te Karauna, Wellington for the First RespondentTu Pono Legal Ltd, Rotorua for the Second Respondent