OTAGO REGIONAL COUNCIL v ROYAL FOREST AND BIRD PROTECTION SOCIETY OF NEW ZEALAND INCORPORATED [2022] NZHC 1777

OTAGO REGIONAL COUNCIL v ROYAL FOREST AND BIRD PROTECTION SOCIETY OF NEWZEALAND INCORPORATED [2022] NZHC 1777 [22 July 2022]IN THE HIGH COURT OF NEW ZEALANDDUNEDIN REGISTRYI TE KŌTI MATUA O AOTEAROAŌTEPOTI ROHECIV-2021-412-000089[2022] NZHC 1777BETWEEN OTAGO REGIONAL COUNCILPlaintiffAND ROYAL FOREST AND BIRDPROTECTION SOCIETY OF NEWZEALAND INCORPORATEDDefendantHearing: 8 February 2022Appearances: A J Logan for the Otago Regional CouncilP D Anderson and M Downing for Royal Forest and BirdProtection Society of New Zealand IncL A Andersen QC for Port Otago LimitedP E M Walker and S W Christensen for Oceana Gold (NewZealand) LtdM R Garbett and R A Kindiak for Dunedin City Council andWaitaki District CouncilJ M Derry and R G Muston for Minister for the EnvironmentP A C Maw and K T Dickson for Canterbury Regional CouncilS J Scott for Queenstown Lakes District Council and CentralOtago District CouncilS R Gepp for Rayonier Matariki Forests Limited and Ernslaw OneLimitedK L Hockly for Te Rūnanga o Ngāi TahuM A Baker-Galloway for Otago Fish & Game Council –appearance excusedJudgment: 22 July 2022JUDGMENT OF NATION JIntroduction 3Background 14The relevant legislation 27Integrated management, the fundamental concept of Te Mana o te Waiand ki uta ki tai 28Submissions in support of the whole of the proposed regional statementbeing a freshwater planning instrument. 35Otago Regional Council 35Ngā Rūnanga 53Canterbury Regional Council 63Submissions of parties who argued the ORC's decision that the proposedregional statement, as a whole, was a freshwater planning instrumentwas not open to it on a correct interpretation of s 80A of the RMA 74The Minister for the Environment 75Forest and Bird 78Oceana Gold 80Port Otago Ltd 86Dunedin City Council and Waitaki District Council 88Central Otago District Council and Queenstown Lakes District Council 95Rayonier Matariki Forest Ltd and Ernslaw One Ltd 105The interpretation of s 80A of the RMA 108Legal principles 108Why the meaning of the legislation is not clear 111Legislative process 117Interpretation of s 80A 148Conclusion as to how s 80A must be read 165Why the ORC's interpretation and application of s 80A of the RMA wasin error 169The Court's task 173The Court's view as to how the words "relates to freshwater" are to beinterpreted and applied 183What, if any, declarations should be made in light of the earlierconclusions in this judgment? 211Costs 232Concluding summary 233[1] In 2020, through an amendment to the Resource Management Act 1991(RMA), Parliament introduced a new freshwater planning process for regional plansor policy statements, or parts of them, that are freshwater planning instruments asdefined in the Act.[2] Through these proceedings, the Court must decide whether there was an errorof law in the Otago Regional Council (ORC) deciding that the whole of its proposedregional statement was a freshwater planning instrument and so subject to thefreshwater planning process.Introduction[3] The purpose of the RMA is to promote the management of the use,development and protection of natural and physical resources to enable people andcommunities to provide for their social, economic and cultural wellbeing and for theirhealth and safety while protecting the environment.1[4] Under the RMA, the Minister for the Environment can and has issued nationalpolicy statements stating objectives and policies for matters of national significancerelevant to achieving the purpose of the RMA.2 Territorial authorities, includingregional councils3 and district councils, must consider and give effect to thosestatements in preparing their policy statements and plans.4[5] Regional councils must have a regional policy statement in accordance withtheir functions under s 30 of the RMA and other RMA provisions.5 The purpose of aregional policy statement is to achieve the purpose of the RMA by providing anoverview of the resource management issues of the region and policies and methodsto achieve integrated management of the natural and physical resources of the wholeregion.61 Resource Management Act 1991 [RMA], s 5.2 Sections 45 and 45A.3 A number of unitary authorities also have the functions of both regional councils and districtcouncils. When referring to regional councils, I am also referring to unitary authorities insofar asthey are exercising regional council functions.4 RMA, ss 62(3), 67(3)(a) and 75(3)(a).5 Sections 60 and 61.6 Section 59.[6] The functions of regional councils include:(a) preparation of objectives and policies as to any actual or potential effectsof the use, development or protection of land which are of regionalsignificance;7(b) preparation of objectives and policies to ensure there is sufficientdevelopment capacity in relation to housing and business lands to meet theexpected demands of the region;8(c) control of the use of land for the purpose of maintaining and enhancingthe quality and quantity of water in water bodies and coastal water;9 and(d) control of discharges of contaminants into or onto land, air or water anddischarges of water into water.10[7] District councils must have district plans to assist them in carrying out theirfunctions in order to achieve the purpose of the RMA.11 They are required to giveeffect to national planning documents and any regional policy statement, and haveregard to proposed regional policy statements.12[8] Under the RMA, interested parties can make submissions to regional councilsas to proposed regional statements. Councils can then decide what should be in theirregional statements.13 Submitters who are dissatisfied with the regional council'sdecision can appeal to the Environment Court.14 This is a specialist tribunal withexpertise as to environmental and planning issues. The Environment Court can thenconsider the issues afresh with all the same powers the regional council had.15 Theparties to an appeal to the Environment Court have rights of appeal to the High Courtbut only as to errors of law.167 Section 30(1)(b).8 Section 30(1)(b)(a).9 Section 30(1)(c)(ii) and (iii).10 Section 30(1)(f).11 Section 72.12 Sections 75(3)(c) and 74(2)(a).13 Schedule 1 cl 10.14 Schedule 1 cl 14.15 Section 290(1).16 Section 299.[9] On 1 July 2020, through the Resource Management Amendment Act 2020 (theAmendment Act), the RMA was amended to establish a new freshwater planningprocess to deal with freshwater issues in regional plans and policy statements.[10] The Amendment Act required submissions on freshwater issues to beconsidered by a separate freshwater hearings panel. That panel then makesrecommendations to a regional council. The regional council can accept or reject anyrecommendation.17 Submitters have a right of appeal to the Environment Court butonly if the recommendation of the freshwater hearings panel has not been accepted.18Submitters can appeal to the High Court if the regional council accepted therecommendation of the freshwater planning hearings panel but only on questions oflaw.19[11] The Minister for the Environment issued a national policy statement forfreshwater management in 2014. This was amended in 2017. The purpose and effectof that statement is to require territorial authorities, including regional and districtcouncils, to improve their management of and carry out their functions to improve thequality of freshwater in all parts of New Zealand/Aotearoa.20[12] In September 2020, that National Policy Statement was replaced by theNational Policy Statement for Freshwater Management 2020 (National FreshwaterPolicy).[13] In 2021, the ORC notified that it had prepared a new Proposed Otago RegionalPolicy Statement June 2021 (proposed regional statement) and had decided the wholeof the statement was a freshwater planning instrument so had to be subject to thefreshwater planning process.17 Resource Management Amendment Act 2020 [Amendment Act], s 22; RMA, s 80A.18 Amendment Act, s 103(3); RMA, sch 1 cl 55.19 Amendment Act, s 103(3); RMA, sch 1 cl 56.20 As seen in the preamble to the National Policy Statement for Freshwater Management 2014(amended 2017) at 4.Background[14] On 1 October 2019, Professor Peter Skelton produced a report for the Ministerfor the Environment reviewing the freshwater management and allocation functions atthe ORC.[15] On 18 November 2019, the Minister for the Environment, under s 24A of theAct, recommended the ORC undertake a complete review of its regional policystatement with the intention that it be made operative by 31 December 2023. TheORC accepted that recommendation and embarked on the significant task of reviewingits partially operative regional policy statement.[16] The National Planning Standards of November 2019 require a regional policystatement to have chapters and sections on various subjects including integratedmanagement, land and freshwater, tangata whenua/mana whenua, air, coastalenvironment, energy infrastructure and transport, and historical and cultural values.[17] On 1 July 2020, through the Amendment Act, Parliament introduced a newsubpt 4 of pt 5 of the RMA. The amendments provided for the separate planningprocess for proposed regional statements that give effect to any national policystatement for freshwater management and/or that relate to freshwater. Such adocument is described in subpt 4 as a freshwater planning instrument.[18] The National Freshwater Policy took effect on 3 September 2020. Itestablished Te Mana o te Wai as its fundamental concept. This concept refers to thefundamental importance of water and recognises that protecting the health offreshwater protects the health and wellbeing of the wider environment. The objectivesof the National Freshwater Policy include, first, ensuring natural and physicalresources are managed in a way that prioritises the health and wellbeing of waterbodies and freshwater ecosystems.21 Amongst other matters, regional councils arerequired to adopt an integrated approach, ki uta ki tai, as required by Te Mana o te Waito recognise the interconnectedness of the whole environment.22 Every regional21 National Policy Statement for Freshwater Management 2020 [National Freshwater Policy], pt 2,objective 2.1.22 Clause 3.5.council must make or change its regional policy statement to the extent needed toprovide for the integrated management of the effects of the use and development ofland on freshwater and on receiving environments.23[19] On 11 September 2020, the Minister for the Environment wrote to the ORC.He recognised the significant progress it had made in acting on his earlierrecommendation but agreed to an extension to allow the ORC to have regard to theNational Freshwater Policy.[20] On 16 June 2021, the proposed regional statement was presented to the ORC.With the proposed statement was a detailed evaluation report prepared under s 32 ofthe RMA. The report identified that "[t]he integrated management of the natural andphysical resources of the Otago region is at the heart of the planning approach toresource management, as expressed in the [proposed regional statement]".[21] At its meeting on 16 June 2021, the ORC confirmed that the whole of theproposed regional statement was a freshwater planning instrument as defined in s80A(2) of the RMA.[22] On 24 June 2021, the defendant (Forest and Bird) wrote to the ORC. Theysaid:In principle we support the desire and need for more integrated management.However, the wording of s 80A (3) of the RMA is quite clear that only theparts of freshwater instruments that relate to freshwater can go through thefreshwater planning process. That's what it's designed for.[23] While Forest and Bird supported moves to improve the proposed regionalstatement, especially with regard to freshwater, they considered there was a risk that: due to an inadequate and arguably unlawful process, the [proposed regionalstatement] in its entirety could be successfully appealed at the end of theprocess by parties who are not happy with it. This would mean a waste of ahuge amount of time, money and effort by everyone who engages in it.[24] The ORC publicly notified the proposed regional statement on 26 June 2021.The notice said the entirety of the proposed regional statement was a freshwater23 National Freshwater Policy, cl 3.5(2).planning instrument and therefore subject to the freshwater planning process. Thenotice also called for submissions, which were due by 3.00 pm on 3 September 2021.[25] On 3 September 2021, the ORC filed an application under the DeclaratoryJudgments Act 1908 for a number of declarations. I refer to these in detail later in thejudgment.24 First and foremost, the ORC sought a declaration that the whole of theproposed regional statement is a freshwater planning instrument.[26] On 21 September 2021, Associate Judge Paulsen directed the proceedings beserved on all primary submitters to the proposed regional statement and there be publicnotice of the proceedings in the Otago Daily Times. The parties heard in theseproceedings were those who filed statements of defence or notices of appearance forancillary purposes.The relevant legislation[27] Section 80A of the RMA states:80A Freshwater planning process(1) The purpose of this subpart is to require all freshwater planninginstruments prepared by a regional council to undergo the freshwaterplanning process.(2) A freshwater planning instrument means—(a) a proposed regional plan or regional policy statement for the purposeof giving effect to any national policy statement for freshwatermanagement:(b) a proposed regional plan or regional policy statement that relates tofreshwater (other than for the purpose described in paragraph (a)):(c) a change or variation to a proposed regional plan or regional policystatement if the change or variation—(i) is for the purpose described in paragraph (1); or(ii) otherwise relates to freshwater.(3) A regional council must prepare a freshwater planning instrument inaccordance with this subpart and Part 4 of Schedule 1. However, if thecouncil is satisfied that only part of the instrument relates to freshwater,the council must—24 See [211] below.(a) prepare that part in accordance with this subpart and Part 4 ofSchedule 1; and(b) prepare the parts that do not relate to freshwater in accordance withPart 1 of Schedule 1 or, if applicable, subpart 5 of this Part.(4) A regional council must—(a) publicly notify the freshwater planning instrument; and(b) if the purpose of the freshwater planning instrument is to give effectto the National Policy Statement for Freshwater Management 2020,publicly notify the freshwater planning instrument by 31 December2024; and(c) no later than 6 months after it has publicly notified the freshwaterplanning instrument, submit the documents required by clause 37(1)of Schedule 1 (the required documents) to the Chief FreshwaterCommissioner; and(d) at least 20 working days before submitting the required documents,provide to the Chief Freshwater Commissioner in writing—(i) its notice of intention to submit those documents; and(ii) the regional council and local tangata whenua nominations forappointment to the freshwater hearings panel required by clause59(1)(b) and (c) of Schedule 1.(8) In subsection (2), a proposed regional plan does not include a proposedregional coastal plan or a change or variation to that plan.Integrated management, the fundamental concept of Te Mana o te Wai and ki utaki tai[28] The way the ORC gave effect to integrated management, Te Mana o te Wai andki uta ki tai was integral to their decision to treat the whole of the proposed regionalstatement as a freshwater planning instrument.[29] A regional council's functions under s 30(1)(a) of the RMA include theestablishment, implementation and review of objectives, policies and methods toachieve integrated management of the natural and physical resources of the region.[30] The purpose of a regional policy statement includes achieving integrationacross policies so that, for example, policy or decisions on water issues should be madein conjunction with policy on land matters that affect water or links that might need tobe made to the policy on natural hazards.25[31] The fundamental concept of Te Mana o te Wai is described in the NationalFreshwater Policy as follows:1.3 Fundamental concept – Te Mana o te WaiConcept(1) Te Mana o te Wai is a concept that refers to the fundamental importanceof water and recognises that protecting the health of freshwater protectsthe health and well-being of the wider environment. It protects the mauriof the wai. Te Mana o te Wai is about restoring and preserving the balancebetween the water, the wider environment, and the community.(2) Te Mana o te Wai is relevant to all freshwater management and not justto the specific aspects of freshwater management referred to in thisNational Policy Statement.[32] Subpart 1 of pt 3 of the National Freshwater Policy sets out approaches toimplementing the National Freshwater Policy.[33] In that regard, every regional council must engage with communities andtangata whenua to determine how Te Mana o te Wai applies to water bodies andfreshwater ecosystems in the region.26 To implement and give effect to Te Mana o teWai, regional councils must also adopt an integrated approach, ki uta ki tai, to themanagement of freshwater.27[34] Clause 3.5 of the National Freshwater Policy states:3.5 Integrated management(1) Adopting an integrated approach, ki uta ki tai, as required by Te Mana ote Wai, requires that local authorities must:(a) recognise the interconnectedness of the whole environment, fromthe mountains and lakes, down the rivers to hāpua (lagoons), wahapū(estuaries) and to the sea; and25 As discussed in Derek Nolan Environmental and Resource Management Law, (7th ed, LexisNexis,Wellington, 2020) at [2.5]; and as illustrated by the decision of the Environment Court in CluthaDistrict Council v Otago Regional Council [2020] NZEnvC 194; upheld by the High Court inClutha District Council v Otago Regional Council [2022] NZHC 510.26 National Freshwater Policy, cl 3.2(1).27 Clause 3.2(2)(e).(b) recognise interactions between freshwater, land, water bodies,ecosystems, and receiving environments; and(c) manage freshwater, and land use and development, in catchments inan integrated and sustainable way to avoid, remedy, or mitigateadverse effects, including cumulative effects, on the health and well-being of water bodies, freshwater ecosystems, and receivingenvironments; and(d) encourage the co-ordination and sequencing of regional or urbangrowth.(2) Every regional council must make or change its regional policy statementto the extent needed to provide for the integrated management of theeffects of:(a) the use and development of land on freshwater; and(b) the use and development of land and freshwater on receivingenvironments.(3) In order to give effect to this National Policy Statement, local authoritiesthat share jurisdiction over a catchment must co-operate in the integratedmanagement of the effects of land use and development on freshwater.(4) Every territorial authority must include objectives, policies, and methodsin its district plan to promote positive effects, and avoid, remedy, ormitigate adverse effects (including cumulative effects), or urbandevelopment on the health and well-being of water bodies, freshwaterecosystems, and receiving environments.Submissions in support of the whole of the proposed regional statement being afreshwater planning instrument.Otago Regional Council[35] Mr Logan for the ORC summarised the ORC's position as follows:The [proposed regional statement] is, in its entirety, a freshwater planninginstrument. That statement seems counterintuitive. A regional policystatement must cover many subjects. But when [the proposed regionalstatement] is carefully considered, freshwater is woven into its fabric. Thereis no severable part which neither gives effect to the [National FreshwaterPolicy] nor relates to freshwater in some other way.[36] The ORC was advised that two issues arose for it to consider in decidingwhether it was satisfied the proposed regional statement (as a whole or in part) couldbe a freshwater planning instrument:First, does the proposed regional statement give effect to any [NationalFreshwater Policy]; and secondly, does the proposed regional statement relateto freshwater?[37] The ORC was advised that significant parts of the proposed regional statement: are clearly able to be classified as a freshwater planning instrument, eitherbecause they are designed to give effect to a national policy statement forfreshwater, or because they are a matter that relates to freshwater. For otherparts it is less straightforward.[38] The ORC was advised the proposed regional statement as a whole should beconsidered a freshwater planning instrument to recognise the fundamental philosophyof the RMA of integrated management and the concept of ki uta ki tai. The integratedmanagement chapter of the proposed regional statement was drafted so conflictsbetween demands for resources could be resolved with an interconnected approach.[39] The report to the ORC purported to summarise the consequences of notrecognising the proposed regional statement in its entirety as a freshwater planninginstrument. That summary suggested the overall integrity of the statement wouldlikely be undermined if there were two parallel hearing processes with differentlyconstituted hearing panels. Having two panels would result in delays and would notachieve the best environmental outcome for Otago. The authors of the reportconsidered the proposed plan should be managed post-notification as a singleintegrated planning instrument.[40] In essence, the recommendation to the ORC was that the whole of the proposedregional statement should be treated as a freshwater planning instrument because thiswould be conducive to managing natural and physical resources in an integrated way;it would recognise that freshwater, in rivers, underground, in the air and in the ocean,is connected and what occurs in the headwaters and on land will have an impact in theocean. The report stated that "[t]he integrated management of the natural and physicalresources was at the heart of the planning approach to resource management in Otagoas expressed in the [proposed regional statement]".[41] In its public notification of the proposed statement, the ORC said the proposedregional statement: is considered to meet the requirements of Section 80A(2)(a) and 80A(2)(b)of the Resource Management Act 1991 because the Chapters of the [proposedregional statement] are either giving effect to any national policy forfreshwater management or relate to freshwater.[42] The notice also stated that the purpose of the RMA of promoting thesustainable management of natural and physical resources could only be achievedthrough an integrated approach to the task of managing those resources. The proposedregional statement had been prepared to achieve that outcome. To not have itconsidered a freshwater planning instrument would be to defeat that purpose.[43] The ORC submitted:(a) A freshwater planning instrument includes a planning document whichgives effect to the National Freshwater Policy including the fundamentalconcept of Te Mana o te Wai. The sole objective of the NationalFreshwater Policy is "to ensure that natural and physical resources aremanaged in a way that gives effect to those priorities".28 "Natural andphysical resources" is defined in s 2 of the RMA as including "land, water,air, soil, minerals, and energy, all forms of plants and animals (whethernative to New Zealand or introduced), and all structures".(b) Clause 3.5 of the National Freshwater Policy required the ORC to managefreshwater in an integrated way.29(c) Accordingly, the threshold for the proposed regional statement to qualifyas a freshwater planning instrument could be met if the whole of it was forthe purpose of giving effect to the National Freshwater Policy. It does sobecause of the way it achieves integrated management and gives effect toki uta ki tai and Te Mana o te Wai.(d) "To give effect to", as referred to in s 80A(2), means to implement.3028 National Freshwater Policy, objective 2.1.29 See [34] above.30 With reference to Environmental Defence Society Inc v The New Zealand King Salmon Co Ltd[2014] 1 NZLR 593, [2014] NZSC 38 at [77].(e) Section 80A(2)(a) and (b) contemplate that the whole of a proposedregional plan or policy statement may be a freshwater planning instrument.The only way Parliament could have contemplated such an outcome wasthrough understanding that this could be appropriate, adopting theintegrated management approach to planning.(f) The second threshold for the proposed regional statement to be treated asa freshwater planning instrument is if it "relates to freshwater" as stated ins 80A(2)(b). The words "relates to" are not qualified. Reading in aqualifier is not permissible. The words bear their natural and ordinarymeaning. A connection to freshwater is sufficient.31(g) In response to submissions from Port Otago that the coastal environmentchapter was not capable of relating to freshwater, the ORC submitted itwas. The National Freshwater Policy states:32This National Policy Statement applies to all freshwater (includinggroundwater) and, to the extent they are affected by freshwater, toreceiving environments (which may include estuaries and the widercoastal marine area).(h) The ORC submitted coastal waters are a receiving environment forfreshwater and for the contaminants carried by freshwater. The ORC alsosubmitted the chapter both implements the National Freshwater Policy andis related to freshwater because of the need for integrated management andto give effect to ki uta ki tai.(i) If links could be made between the freshwater chapter of the proposedregional statement and other specific resource management chapters,namely, air, management of infrastructure and transport resources, andparts of historical and cultural values, natural features and landscapes, andurban form and development, then those chapters relate to freshwater.(j) Section 80A(3) simply recognises there may be freshwater planninginstruments that only partially relate to freshwater.31 With reference to the definition in the Oxford Learner's Dictionary: "relate" Oxford Learner'sDictionary <www.oxfordlearnersdictionaries.com>.32 National Freshwater Policy, cl 1.5.[44] The ORC acknowledged that its decision as to whether the proposed regionalstatement or parts of it were a freshwater planning instrument was not conclusive. Thecorrectness of its decision is a question of law to be determined by applying s 80A,properly construed. It thus said a detailed consideration of the regional planningstatement was required to see whether there was some distinct part which does notgive effect to the National Freshwater Policy or which does not relate to freshwater.[45] The ORC then addressed in detail the various chapters in the proposed regionalstatement. The proposed regional statement separated into various chapters withchapters on air, coastal environment including a section on the coastal marine area,geothermal, and land and freshwater. The ORC said this structure was required by theNational Planning Standards 2019 as required by ss 61(1)(da) and 62(3) of the RMA.It submitted adherence with the standards tended to create the appearance of subjectmatter silos with seemingly discrete treatment of individual topics. This superficiallyconcealed the way in which freshwater was integrated into all parts of the proposedregional statement.[46] The ORC drew attention to specific references to freshwater in those variouschapters but also other statements that, it submitted, were connected to freshwaterwhich meant they should be regarded as giving effect to the National FreshwaterPolicy or as being related to freshwater. Mr Logan also acknowledged there were partsthat did not refer to freshwater. For instance, he noted there were many definitions inthe definition section that do not relate to freshwater, but some do.[47] As an example of a provision related to freshwater, the ORC referred to theproposed regional statement identifying one of the issues for the region as being:Poorly managed urban and residential growth affects productive land,treasured natural assets, infrastructure and community well-being. Demandfor the supply of water, adverse effects on waterways and disposal ofcontaminants to water are described as potential adverse effects.[48] As another example, it discussed the chapter on air. The ORC submitted watermeans water in all its physical forms.33 This definition encompasses water vapour.33 RMA, s 2.Water vapour is a contaminant when discharged to air. The discharge of contaminantsto air is regulated by the RMA. It said discharges to air can have adverse effects onreceiving environments, including freshwater, for example through spray drift. Theregional statement stipulates for controls to manage these effects so provisions in thischapter contribute to implementing the National Freshwater Policy and relate tofreshwater.[49] As to the coastal environment, the ORC said freshwater does relate to thecoastal environment because the coastal environment extends landward of the coastalmarine area and includes freshwater bodies, rivers, lakes, wetlands, aquifers andsprings. The proposed regional policy describes how coastal waters are a receivingenvironment for freshwater gravel, sediment and other contaminants from terrestrialactivities.[50] In the chapter as to transport, the ORC said the first objective is an integratedair, land and sea transport network that is effective, efficient and safe, connectscommunities and activities, and is resilient to natural hazards. It submitted this chaptertriggers the application of infrastructure provisions in the proposed regional statementwhich implement the National Freshwater Policy because there are freshwater hazardsthat threaten the resilience of the transport systems and public transport can include aservice for the carriage of passengers by vehicle, rail or ferry.[51] In responding to submissions from other parties, the ORC submitted the words"relates to freshwater" embraces provisions that relate to freshwater "but are focusedon outcomes broader than just freshwater". It submitted that outcome is not surprising.Freshwater underpins life. To promote sustainable management and achieveintegrated management of natural and physical resources, it is necessary to make, atevery step, decisions which relate to freshwater.[52] Mr Logan said, if there had to be a qualification on the phrase "relates to", themost preferable qualification would require a cause or connection to freshwater in themanner submitted in accordance with the submissions made for the Waitaki Districtand Dunedin City Councils.Ngā Rūnanga[53] Submissions were made on behalf of Te Rūnanga o Moeraki, Kāti HuirapaRūnaka ki Puketeraki, Te Rūnanga o Ōtākou and Hokonui Rūnanga, and Te Rūnangao Ngāi Tahu (collectively Ngā Rūnanga). Te Rūnanga o Ngāi Tahu is the statutorilyrecognised representative tribal body of Ngāi Tahu Whānui. The others are four of the18 Papatipu Rūnanga of Ngāi Tahu Whānui that are statutorily recognised under theTe Rūnanga o Ngāi Tahu Act 1996 and are mana whenua within the Otago region.[54] Ngā Rūnanga supported the ORC's position. Ngā Rūnanga summarised theirposition in these proceedings as being to ensure appropriate provision is made for therecognition of the relationship of Ngāi Tahu Whānui with their ancestral lands, watersand other taonga in the process of the hearing and decision-making on the proposedregional statement. They said this is to be achieved by way of an integrated approachto management of the Otago regions resources under the RMA.[55] Ngā Rūnanga made the following submissions:(a) The proposed regional statement met the definition of a freshwaterplanning instrument because it is a regional planning statement for thepurpose of giving effect to a national policy statement for freshwatermanagement. Correctly interpreted, the words "relates to freshwater" in s80A(3) could encompass all parts of freshwater planning instruments thatare for the purpose of giving effect to the National Freshwater Policy.(b) The ORC correctly interpreted s 80A(3) when it came to the view that theentirety of the proposed regional statement relates to freshwater in thecontext of:(i) the history of the reviews that had led to the proposed regionalstatement;(ii) the directions in the National Freshwater Policy; and(iii) the ORC's duty to take an integrated planning approach under theRMA.(c) This interpretation would best give effect to Parliament's intention as itwould allow all parts of regional policy statements and plans that are forthe purpose of giving effect to the National Freshwater Policy to beincluded in the streamlined freshwater planning process, so as to enablethe relevant councils to give effect to the National Freshwater Policy fullyand quickly.(d) This interpretation would also give effect to provisions of the RMA thatprovide for the integrated management of the natural and physicalresources of the region. The National Freshwater Policy recognises theimportance of integrated management through Te Mana o te Wai and kiuta ki tai.(e) The Environment Committee report on the Resource ManagementAmendment Bill 2019 made it clear that the intent of the freshwaterplanning process was to assist regional and unitary councils to meet thedeadline for implementing the requirements of the National FreshwaterPolicy. The process was intended to achieve this purpose throughimplementing a streamlined one-step process with limited rights of appeal.(f) The implication of Forest and Bird's interpretation of s 80A(3) would bethat decision-making on the proposed regional statement would becomefragmented, making it more difficult for the ORC to achieve the freshwateroutcomes required by the National Freshwater Policy.(g) The freshwater hearings panel includes two persons nominated by therelevant regional council and one person nominated by local tangatawhenua. The panel would have the ability and expertise to ensure there isa proper hearing of all submissions as to the proposed regional statementunder the freshwater planning process, particularly because expertevidence and reports could be part of the process.(h) There was an expressed intention for the proposed regional statement togive effect to the National Freshwater Policy in the council officer's reportof 6 June 2021 and s 32 report. These set out why the ORC consideredthe proposed regional statement gives effect to the National FreshwaterPolicy. Ngā Rūnanga acknowledged the proposed regional statementgives effect to other national policy statements but submitted this did notprevent the proposed regional statement from falling within the definitionof a freshwater planning instrument in s 80A(2)(a) of the RMA.(i) The use of the word "satisfied" in s 80A(3) conferred a merits decision onthe relevant council. It was for the ORC to review the freshwater planninginstrument and satisfy itself whether only parts of it relate to freshwater orwhether the instrument relates to freshwater in its entirety. Once it wasestablished the ORC had carried out an assessment of the proposedregional statement and come to the view it was satisfied the proposedregional statement relates to freshwater in its entirety, the merits of thatdecision could not be the subject of declaration proceedings.[56] Ngā Rūnanga's position was supported by an affidavit from Edward WellerEllison, Upoko of Te Rūnanga o Ōtākou.[57] In his affidavit Mr Ellison spoke with obvious authority but also as someonewhose identity and whakapapa are closely tied to the Otago region, ki uta ki tai, fromthe mountains to the sea. He spoke of the Kāi Tahu understanding of the centralimportance of wai Māori (freshwater) and its interconnectedness to the other parts tote taiao (the natural world), and the importance of mana whenua involvement indecision making about wai māori and te taiao more broadly.[58] Mr Ellison said Kāi Tahu ki Otago has consistently advocated for a moreholistic and integrated approach to planning that recognises the connections betweenland, freshwater, coastal waters and indigenous biodiversity, and for better recognitionof the relationship of Kāi Tahu o te taiao. He spoke to the importance of rakatirataka(having the mana/authority to give effect to Kāi Tahu culture in the management ofthe natural world) and kaitiakitaka (the right and responsibility to care for theenvironment passed through generations) to Te Mana o te Wai for Kāi Tahu.[59] Mr Ellison said the narrow approach that had been taken to freshwatermanagement in Otago had led to the profound loss of mahika kai resources due to thedrainage of wetlands, and the degrading of the quality of wetlands, rivers, estuaries,harbours and coastal demands.[60] Sandra Jean McIntyre is an experienced planner. She had a leading role inproviding input on behalf of Kāi Tahu ki Otago to the proposed regional statement. Inher affidavit, she agreed with the ORC that the proposed regional statement as a wholegives effect to the National Freshwater Policy or relates to freshwater planning. Sheconsidered the proposed regional statement had to be an "integrated package" to beeffective. She considered there would be a real risk it would not be an "integratedpackage" if there was a segregated decision-making process, where different parts ofthe proposed regional statement would be considered through different processes andat different times.[61] Ms McIntyre considered "there are clear connections to freshwater planningthroughout the [proposed regional statement]". She had not undertaken acomprehensive review of all provisions in the proposed regional statement but gaveexamples of connections to freshwater planning across the proposed regionalstatement.[62] Ngā Rūnanga thus supported the ORC's application for declarations that theORC had decided correctly that the whole of the proposed regional statement was afreshwater planning instrument.Canterbury Regional Council[63] In its pleading, the Canterbury Regional Council (CRC) asserted that whetherthe proposed regional statement as a whole is a freshwater planning instrument was aquestion of law. In submissions, it said the CRC did not take a position as to whetherthe whole of the proposed regional statement was a freshwater planning instrument.[64] Nevertheless, in an affidavit for the CRC, its regional planning manager MrParish said that the CRC was reviewing its current regional policy statement, as theRMA required of it every 10 years.34 He said the CRC's current policy statement34 RMA, s 79.provided the strategic framework for all resource management issues in the region, itwas anticipated much of the document would "relate to freshwater" such that it shouldproceed through the freshwater planning process set out in the RMA. The CRCanticipated there may be parts of their policy statement and regulatory framework asa whole that would not relate to freshwater, but it was currently unclear where the lineshould be drawn to determine which provisions relate to freshwater "given theintegrated management philosophy underpinning the RMA and the CRC's approachto planning processes".[65] Mr Parish said that, in Canterbury and Otago, the integrated managementpolicy has more recently been expressed through the concept of ki uta ki tai.[66] Mr Parish stated the concept of Te Mana o te Wai, as referred to in the NationalFreshwater Policy, demonstrates that a broad range of activities can be considered torelate to freshwater. He said that required local authorities to recognise theinterconnectedness of the whole environment − from the mountains and lakes, downthe rivers to hapua lagoons (lagoons or hapū estuaries) and to the sea.[67] Mr Parish said planning consistent with ki uta ki tai required the CRC to ensurethe effects of activities are managed holistically and to recognise theinterconnectedness of the environment as a whole. This meant some activities(although they may not seem, on their face, to relate to freshwater) do have impactson freshwater. As such, he anticipated it would be difficult to determine specificallywhich parts of a document such as a regional policy statement "relate" to freshwaterwithin the terms of the RMA.[68] Mr Parish said, accordingly, CRC sought further clarity as to how to determinewhether a document (or part of a document) "relates" to freshwater such that it can beconsidered a freshwater planning instrument.[69] The CRC also sought guidance as to whether determination as to which partsof a planning instrument do not relate to freshwater should be on a chapter-by-chapterbasis or on a provision-by-provision basis.[70] Through the submissions of Mr Maw, the CRC said it had "some reservationsas to how a regional policy statement could be effectively split between two planningprocesses". It said the key issues to this included:(a) how submissions as to further integration between provisions are to beconsidered if relevant provisions are required to be considered under twoseparate planning processes;(b) the extent of the Council's discretion in terms of satisfying itself that theplanning instrument "relates to freshwater"; and(c) the risks of splitting up provisions to proceed through separate planningprocesses, both as to considering objectives separately from otherobjectives and considering policies separately from their associatedobjectives.[71] The CRC submitted:(a) The definition of a freshwater planning instrument included either:(i) a planning document for the purpose of giving effect to any nationalfreshwater statement; or(ii) a planning document that relates to freshwater (other than for thepurpose of giving effect to a national policy statement for freshwatermanagement).(b) "Relates to freshwater" means something different than giving effect tothe National Freshwater Policy, but there is no guidance in the legislationitself to determine how a council is supposed to decide what "relates" tofreshwater.(c) In order to give effect to the concept of integrated management (or ki utaki tai) and the fundamental principle of Te Mana o te Wai, councils wouldhave to consider a range of matters: that may not be traditionally thought of (especially in a Westernsense) as relating to freshwater such that they are required to giveeffect to the [National Freshwater Policy]. This can include aspectssuch as the co-ordination and sequencing of regional or urbangrowth.(d) This would make it even more difficult to determine which provisions ofa planning document are for the purpose of giving effect to the NationalFreshwater Policy or which otherwise relate to freshwater, or are unrelatedsuch that they should proceed through the usual pt 1 of sch 1 process.(e) Section 80A(3) applies only if the regional council is satisfied that onlypart of the instrument relates to freshwater. This ultimately leaves arelatively broad discretion in the council's hands to determine which partsof the plan give effect to the National Freshwater Policy or otherwise relateto freshwater, such that they should proceed through the freshwaterplanning process.(f) There are ways risks as to integrated management could be reduced ifdifferent parts of the instrument go through different processes. Forinstance, councils could nominate people to be members of bothfreshwater hearings panels and panels dealing with other matters. Itnevertheless submitted there is still a need for: some level of clarity regarding which provisions were to proceedthrough which process in order to determine whether an appeal on themerits of the decision is available or not.[72] The CRC suggested several principles should be recognised in determining theapproach councils should take in deciding whether a document or parts of a documentare a freshwater planning instrument.[73] The first suggested principle was that the Court should err on the side of havingmore parts of the proposed regional statement go through the freshwater planningprocess rather than less, to allow submissions to be considered through the samehearings process. Another was that, in order to achieve integrated management of thenatural and physical resources of the region, the provisions with relationships to eachother should proceed through the same planning process as far as practicable and,"where provisions relate to freshwater but also other matters, they should proceedthrough the freshwater planning process".Submissions of parties who argued the ORC's decision that the proposed regionalstatement, as a whole, was a freshwater planning instrument was not open to iton a correct interpretation of s 80A of the RMA[74] My later analysis sets out how s 80A is to be interpreted and applied.35 Inconsidering its purpose, I refer in detail to relevant aspects of the legislativebackground as were brought to my attention in submissions for various parties. In theinterests of economy, I do not repeat them in detail here.The Minister for the Environment[75] The Minister for the Environment, through counsel, submitted:(a) The determination required under s 80A was not what is excluded fromthe freshwater planning process but what had to be included. The startingpoint is the normal pt 1 of sch 1 process with the full submitterparticipatory rights.(b) Further, just as it is mandatory for a freshwater planning instrument to gothrough the freshwater planning process,36 it is also mandatory that thoseparts of a plan or policy statement that are not related to freshwater donot.37 As the requirements of s 80A(3)(a) and (b) are mandatory, the testmust be rigorously applied.(c) The RMA recognises that everything in the natural world is, to someextent, connected to everything else. Recognising the need for anintegrated approach, it was best in draft plans and policy statements toproperly recognise and plan for interdependencies, co-dependencies andinterconnectedness. Nevertheless, it is possible to divide topicsadministratively for hearing, as most councils do, so splitting some topicsto go down a different track would be similar.35 See [117]-[147] below.36 Section 80A(3).37 Section 80A(3)(b).[76] Counsel referred to the Minister's statement in introducing the ResourceManagement Amendment Bill 2019 (the Amendment Bill) in September 2019 andother aspects of the legislation process.38[77] Counsel referred to the Departmental Report on the Amendment Bill (theReport) prepared by the Ministry for the Environment of March 2020. The Reportreferred to submissions that had been made to the Environment Committee in thecontext of integrated management that advocated the fast track should apply to allplanning documents. The submissions were rejected on the basis that such a changewould interfere with the expedited process for freshwater.Forest and Bird[78] Forest and Bird submitted:(a) The scope of what might be a freshwater planning instrument isdetermined by s 80A(3). Section 80A(3) directs that provisions that donot relate to freshwater cannot come within the definition of a freshwaterplanning instrument and cannot be subject to the freshwater planningprocess.(b) Accordingly, provisions that give effect to broad directions in the NationalFreshwater Policy such as integrated management cannot, by reason onlyof this, be subject to the freshwater planning process. They must alsorelate to freshwater. Put another way, provisions unrelated to freshwatercannot be subject to the freshwater planning process simply because theyneed to be integrated with freshwater management matters.(c) This interpretation of s 80A is consistent with the general scheme andpurpose of the RMA and the manner in which it, in a number of instances,separates freshwater from other natural and physical resources.(d) The intended distinction between freshwater and other resources was putbeyond doubt by the legislative history of the Amendment Act. The38 See [130] below.intention behind the freshwater planning process was to introduce anexpedited process to address freshwater quality decline.(e) Given the stringent timeframes required by the freshwater planningprocess, freshwater hearings panels should not be burdened withadditional matters that are unrelated or only remotely related to freshwater.Those are more appropriately dealt with through the standard process inpt 1 of sch 1. The ORC's approach would frustrate the intent behind thefreshwater planning process of putting in place a streamlined processintended to expedite protection and restoration of freshwater.(f) The scope of what "relates to freshwater" must be capable of pragmaticassessment that is consistent with the RMA's careful and deliberateseparation of decision-making procedures for natural and physicalresources.(g) Where in a chapter there was only a limited reference to a freshwater issue,adopting a pragmatic approach, the better course was to exclude the wholeof that chapter as not relating to freshwater.(h) There was guidance in s 30 of the RMA as to what parts of a policystatement would relate to freshwater with the reference to functions thatcould be seen as clearly relating to freshwater, namely:(i) controlling the use of land for the purpose of the maintenance andenhancement of the quality or quantity of water in water bodies in s30(c)(ii) and (iii); and(ii) in relation to any bed of a water body, the control of planting any plantin, on or under that land for the purpose of maintaining and enhancingthe quality and quantity of water in that water body in s 30(1)(g)(ii)and (iii).(i) The hearings panel must have two freshwater commissioners who haveexpertise in relation to freshwater quality, quantity and ecology, Te Manao te Wai and water use in the local community. There is no expressrequirement for panel members to have expertise in matters such as airquality, marine ecology or other aspects of the environment. Thisdemonstrates the freshwater planning process was not tailored for widerresource management matters. Where provisions require expertise outsidethe scope of the panel members, such as the ecosystems and indigenousbiodiversity chapter, those provisions should go through the standardprocess in pt 1 of sch 1.(j) The land and freshwater domain chapter should be the only freshwaterplanning instrument. There may be particular matters in other parts of theproposed regional statement that relate to freshwater, but it would beinappropriate to include every provision in that particular domain or topicchapter as being related to freshwater. Adopting a practical approach, suchisolated matters should not be subject to the freshwater planning process.(k) Section 80A is concerned with freshwater. Freshwater is defined in s 2 asmeaning "all water except coastal water and geothermal water". Coastalwater is defined in s 2 as: seawater within the outer limits of the territorial sea and includes—(a) seawater with a substantial freshwater component; and(b) seawater in estuaries, fiords, inlets, harbours or embayments[.](l) The RMA makes clear distinctions between areas where freshwater ispresent and areas where coastal water is present. The use of the term"freshwater" in s 80A(3) indicates a deliberate choice to confine thefreshwater planning process to freshwater issues, rather than collateralissues relating more broadly to other resources.(m) Only one provision in the coastal environment domain chapter refers tofreshwater. The policy CE-P4(1)(c) requires the identification of "areasand values of high and outstanding natural character which may includematters such as: natural landforms such as headlands, peninsulas, cliffs,dunes, wetlands, estuaries, reefs, freshwater springs and surf breaks".3939 Emphasis in original.They submitted, while there is a reference to freshwater, it relates to thenatural character of the coastal environment and cannot easily be tied backto freshwater quality, quantity or ecology.(n) As examples of provisions in the coastal environment that are spatiallydistinct from freshwater and water bodies, they referred to statements asto protection of nationally significant surf breaks, maintaining orenhancing public access to and along the coastal marine area, provisionsas to activities that only occur in the coastal marine area, the reference toaquaculture, which does not relate to freshwater, and to reclamation which,by its very nature, can only occur in the coastal marine area.(o) Several parts of the proposed regional statement did not claim to be relatedto freshwater. The proposed regional statement contains a naturallandscape and features topic chapter which says it implements ss 6(b) and7 of the RMA, without reference to the National Freshwater Policy orintegrated management.The policies in this chapter are designed to require outstanding andhighly valued natural features and landscapes to be identified usingregionally consistent attributes, then managing activities to eitherprotect outstanding natural features and landscapes in accordancewith section 6(b) of the RMA 1991 or maintain highly valued naturalfeatures or landscapes in accordance with section 7 of the RMA 1991.(emphasis in original)This policy relates to landscape without any freshwater function.(p) It is not tenable for the urban form and development chapter to "relate to"freshwater when it makes no substantive reference to it. The proposedregional statement states:The policies in this chapter are designed to facilitate the provision ofsufficient housing and business capacity and ensure all of the region'surban areas demonstrate the features of well-functioning urbanenvironments and meet the needs of current and future communities.(emphasis in original)[79] Forest and Bird acknowledged that, in the proposed regional statement, in aseparate chapter and in various other chapters, there is reference to mana whenua.Forest and Bird said it deferred to mana whenua on those sections.Oceana Gold[80] Oceana Gold owns and operates New Zealand's largest gold and silver mine.The company holds more than 220 resource consents, mostly granted by the ORC.The mine is located in east Otago around Macraes township. It is within a special-purpose zone in the operative Waitaki District Plan which recognises the significanceof the mine to the Waitaki District. It operates in a negative water balanceenvironment, which means that Oceana Gold imports more water onto the site forprocessing purposes than is discharged into the receiving environment.[81] As with Forest and Bird, Oceana Gold submitted the key provision driving theappropriate classification of the proposed regional statement is s 80A(3) and what"relates to freshwater" means in that provision. They submitted, if the proposedregional statement comprises parts which relate to freshwater and parts which do notrelate to freshwater, it is only those parts relating to freshwater that follow thefreshwater planning process. The parts that do not relate to freshwater must followthe standard process in pt 1 of sch 1. They submitted that "relates to freshwater"requires there be something more than a connection with freshwater.[82] Oceana Gold submitted:(a) The proposed regional statement was not for the purpose of giving effectto any national policy statement for freshwater management because:(i) the proposed regional statement was prepared for the purpose ofcomplying with the Minister for the Environment's directions of 18November 2019, not to give effect to the National Freshwater Policy;(ii) the proposed regional statement does not mention the NationalFreshwater Policy or any other national policy statement by name, andneither "water" nor "freshwater" appear in its purpose; and(iii) there had been no active consideration given to the council's role of"satisfying" itself as to the subject matter of the instrument and whatparts could be held to relate to freshwater in the advice given to theORC.(b) The legislation contemplated there could be parts of a freshwater planninginstrument that "relate to freshwater" and parts that do not. They acceptedthat all resources are interconnected and must be managed in an integratedway. However, it does not follow that everything "relates to" freshwaterfor the purposes of s 80A. That would be inconsistent with the Ministryfor the Environment's technical guidance from September 2020 and thepurpose of s 80A.40(c) If the interconnectedness of resources and need for integrated managementmean that "relates to freshwater" is synonymous with "some connectionto freshwater", then s 80A(3) would not have any practical application.(d) For parts of the proposed regional statement to be subject to the freshwaterplanning process, they must "relate to freshwater" and that meant they hadto be provisions which implement a regional council function regardingfreshwater quality, quantity or ecology.(e) The legislation requires a regional statement to set out and have regard tothe range of matters referred to in the RMA. Because of this, the proposedregional statement is concerned with much more than just the managementof freshwater resources.(f) If the Court were to make a declaration that the proposed regionalstatement in its entirety relates to freshwater and so is a freshwaterplanning instrument, the consequence would be that all regional policystatements would be freshwater planning instruments and thus be subjectto the freshwater planning process. It would further mean that, if anychange or variation to the proposed regional statement was required togive effect to any new or changed national instruments would "be related40 A new Freshwater Planning Process: Technical guidance for councils (Ministry for theEnvironment, September 2020).to freshwater" and subject to the freshwater planning process. This wouldbe an absurd result and not what Parliament intended.[83] Oceana Gold submitted the proposed regional statement contains provisionsthat "at best have a tenuous connection with freshwater" and are instead directlyrelated to other important regional resource management issues such as urbandevelopment, identification and protection of land for primary production, energy,transportation, infrastructure, and the protection and maintenance of biodiversity.[84] As to those matters, they submitted the freshwater planning process was poorlysuited to be the process for developing regional policy. The standard plan-makingprocess has the benefits of the availability of appeal rights and specialist judicialoversight. They submitted that, with s 80A, Parliament decided the urgency ofachieving better freshwater management outweighed those benefits Oceana Goldaccordingly submitted the Court should be cautious in allowing s 80A to be utilised ina way that would allow topics to be subject to the freshwater planning process in waysParliament had not clearly identified as being subject to that process.[85] The Court had the assistance of an affidavit from Claire Hunter, a resourcemanagement consultant. She helpfully summarised the legislative context in whichregional plans are prepared. There was also an affidavit from Alison Paul, OceanaGold's general manager of corporate and legal affairs. Through their affidavits,Oceana Gold highlighted matters in the proposed regional statement that had been ofconcern to them and which they suggested were not related to freshwater issues. Thoseconcerns related to the lack of recognition of the significance of the mining andextractive sectors and the lack of a policy recognising the locational constraints andfunctional needs of mining because mining can only happen where minerals naturallyoccur.Port Otago Ltd[86] Port Otago Ltd operates international ports at Port Chalmers and Dunedin.[87] Port Otago submitted:(a) Section 80A(3) is the driving consideration of what is a freshwaterplanning instrument in terms of s 80A, so only the parts of the instrumentthat relate to freshwater can be subject to the freshwater planning process.(b) Consistent with the opinion of Ms van der Spek for the Waitaki DistrictCouncil, forcing all resource management issues into a process that wasintended for freshwater issues would not be an integrated approach norwould it allow for appropriate consideration of all aspects of sustainablemanagement. Rather, it would cause all issues to be seen through the lensof freshwater management and be dealt with only in that context.(c) The proposed regional statement was not a freshwater planning instrumentin its entirety because it includes provisions relating to coastal water suchas the main domain "CE – Coastal environment" and policies relating toseawater. Freshwater is defined in the RMA and in the proposed regionalstatement to specifically exclude coastal water. Proposed regional coastalplans are also excluded from the definition of freshwater planninginstruments by s 80A(8). The freshwater planning process is inappropriatefor an issue as complex as the application of the New Zealand CoastalPolicy Statement.(d) The recommendation to the ORC that the whole of the proposed regionalstatement could be considered a freshwater planning instrument had failedto inform the ORC of the definition of "freshwater" and the exclusion ofseawater from consideration under the freshwater planning process.(e) Because the ORC failed to identify those parts of the proposed regionalstatement that were not related to freshwater, the process followed by ORCin notifying the whole of the proposed regional statement as a freshwaterplanning instrument was invalid.Dunedin City Council and Waitaki District Council[88] Mr Garbett appeared as counsel for the Dunedin City Council and WaitakiDistrict Council. He said those councils supported the submissions for Forest and Birdin full, although the councils considered more chapters of the proposed regionalstatement to substantially relate to freshwater.[89] The Dunedin City Council's opposition was supported by an affidavit from DrAnna Johnson, the city development manager. She identified that the Council's keyconcern with the proposed regional statement centres around how and whether it gaveeffect to the National Policy Statement for Urban Development and adequatelyprovided for housing, and infrastructure to support housing in Dunedin. She said thecouncil's submission to the ORC on the proposed regional statement "covered a broadrange of issues with a focus on topics related to growth and infrastructure, which aredistinct topics from freshwater or freshwater management".[90] Dr Johnson was concerned that, if the entirety of the proposed regionalstatement went through the streamlined freshwater planning process, it would not bea fair process and the regional statement would inadequately address issues relating tourban development. She said:Based on my previous experience with the 2015 [proposed regionalstatement], the appeal process (and the opportunities it created for mediationbetween the parties) was essential for creating a more workable [proposedregional statement]. Those opportunities would not be afforded where appealsare only allowed on points of law.[91] The Waitaki District Council's opposition was supported by an affidavit fromits executive officer, Victoria van der Spek. In her affidavit, she identified key issuesthe Waitaki District Council had with the proposed regional statement that she said didnot directly relate to freshwater management. These issues related to concerns aboutcoastal erosion, the lack of recognition of carbon forestry as a significant resourcemanagement issue in the Otago region with regard to its effects on pastoral farming,the impact of such forestry on rural economies, loss of historically "productive land",negative impacts on local employment and agricultural services, reverse sensitivityeffects, issues with fire risk, wilding tree spread and issues with site rehabilitation. Ina response to the proposed regional statement, the Council had submitted there wasinadequate recognition of the Macraes mining operation and inadequate recognitionof certain social and civil buildings (including schools, churches, civil and publicbuildings as historic heritage buildings).[92] Mr Garbett accepted that the ORC had satisfied itself that the whole of theproposed regional statement related to freshwater and thus was a freshwater planninginstrument. He submitted the ORC's decision had to be available to it in terms ofeither s 80A(2)(a) or (b). He submitted that the whole of the proposed regionalstatement had to be for the purpose of giving effect to the National Freshwater Policyor it had to entirely relate to freshwater. He submitted that only parts of the proposedregional statement gave effect to the National Freshwater Policy and only parts relateto freshwater.[93] The Dunedin City Council and Waitaki District Council submitted the term"relates to" should be to require "a cause or connection between". They submittedthat, given the context in which s 80A was enacted and Parliament's intention toestablish a streamlined planning process for freshwater instruments, the phrase"relates to" was intended to apply to those instruments, or parts of them, that relatedirectly to freshwater, and maintaining its quality and quantity.[94] Mr Garbett was critical of the submission for the ORC that if freshwater ismentioned in a chapter in the proposed regional statement then the whole of thatchapter should qualify as a freshwater instrument.Central Otago District Council and Queenstown Lakes District Council[95] The Central Otago District Council and the Queenstown Lakes DistrictCouncil's (QLDC) positions were consistent with those of the Waitaki District Counciland Dunedin City Council.[96] For Central Otago District Council and the QLDC, Ms Scott acknowledgedthat parts of the proposed regional statement directly relate to freshwater.Nevertheless, consistent with the submissions for Oceana Gold, Ms Scott submittedthat for the Court to find the National Freshwater Policy requires an integratedapproach to be taken so the entire proposed regional statement is a freshwater planninginstrument under s 80A(2)(a) would effectively render s 80A(2)(b) obsolete.[97] These councils adopted Forest and Bird's submissions on interpretationprinciples and the primacy of s 80A(3) but emphasised that the interpretation of s80A(3) is to be approached with two principles of interpretation in mind:(a) the meaning of a statutory provision is to be ascertained from text in lightof purpose and context;41 and(b) Parliament is presumed to legislate in a manner that produces a practical,workable and sensible result.42[98] These councils submitted it is overly simplistic to say, if there is any connectionwith freshwater in a chapter regardless of proximity or centrality, then the wholechapter or topic will relate to freshwater for the purposes of s 80A. This interpretationignores Parliament's intention in s 80A(3) that parts of a proposed regional policystatement that do not relate to freshwater are to go through the standard process in pt1 of sch 1.[99] The QLDC's position was supported by an affidavit from its manager ofplanning policy, Alyson Hutton. She said the QLDC's interest in the case was that theproposed regional statement addresses a broad range of matters which she and theQLDC considered do not relate to freshwater. The QLDC opined that, to ensure goodplanning outcomes, those provisions required examination through a broader resourcemanagement lens rather than with a focus on freshwater issues. In that regard, for theCentral Otago District Council and the QLDC, the absence of merits-based appeals asto non-freshwater issues was a further and significant concern.[100] It was Ms Hutton's opinion that a provision in the proposed regional statementmust "relate to freshwater in a more than tangential way" for it to be treated as part ofa freshwater planning instrument.[101] Ms Hutton referred to the QLDC's interest in the natural features and landscapesection of the proposed regional statement. This relates to the management of featuresor landscapes identified as an outstanding natural feature or outstanding natural41 Legislation Act 2019, s 10.42 R v Salmond [1992] 3 NZLR 8 (CA) at 13, per Cooke P.landscape. The QLDC was critical of the ORC's submission that the chapter in theproposed regional statement as to outstanding natural features and landscapes couldbe treated as relating to freshwater because these features included certain areas offreshwater, for example a river. The QLDC said that submission ignored the realitythat a significant number of such features have no relationship to freshwaterwhatsoever.[102] An affidavit was filed for the Central Otago District Council by its principalpolicy planner, Ann Rodgers. Ms Rodgers identified that the majority of the DistrictCouncil's areas of interest on the proposed regional statement focused on issues otherthan freshwater management.[103] An example she referred to was Central Otago experiencing some of thecoldest temperatures in the country during the winter months and the potential for thetiming of the phasing out of non-compliant wood burners to adversely affect the healthof communities who may not be able to replace their heating.[104] Consistent with affidavit evidence from other planners, she expressed aconcern that, with the freshwater hearings panel's emphasis on freshwater expertise,there would be a risk that the final regional policy statement might continue to giveinadequate attention to the National Policy Statement on Urban Development andissues related to growth. Having those matters go through the streamlined freshwaterplanning process would not be a fair process for the District Council and would beunlikely to deliver the quality of decision-making it expects on non-freshwatermatters. She noted the District Council's appeal rights as to such matters would beseverely limited if that is how these issues are to be dealt with.Rayonier Matariki Forest Ltd and Ernslaw One Ltd[105] Rayonier Matariki Forests Ltd (Rayonier) is a forestry company owning ormanaging over 70 forests located throughout New Zealand, including 7,780 ha ofpredominantly pinus radiata in the Otago region. Ernslaw One Ltd (Ernslaw) is aforestry company managing up to 130,000 ha throughout New Zealand. This includes20,360 ha of pinus radiata and Douglas fir in the Otago region.[106] Rayonier and Ernslaw asserted parts of the proposed regional statement,including parts relating to "coastal water", are not for the purpose of giving effect tothe National Freshwater Policy nor do they otherwise relate to freshwater.[107] As to the interpretation of s 80A, Ms Gepp for Rayonier and Ernslawsubmitted:(a) If Parliament intended regional plans to be freshwater planninginstruments in their entirety, there would have been no need to introduceand define "freshwater planning instruments". Parliament could havesimply said the freshwater planning process would apply to regional policystatements and regional plans.(b) The expertise of the commissioners making up the freshwater hearingspanel would be focused on "freshwater quality, quantity and ecology" withbroader expertise on judicial process, the RMA, and tikanga Māori andmātauranga Māori.43 The ability for additional members to be appointedto extend the expertise would not be enough to ensure the panel isequipped to deal with regional plan provisions that do not squarely relateto "freshwater". The composition of the hearings panel is consistent withParliament intending that the emphasis in the freshwater planning processwould be on freshwater considerations.(c) Parts of the proposed regional statement that are for the purpose of givingeffect to the National Freshwater Policy will qualify as a freshwaterplanning instrument but only insofar as they give effect to the freshwaterfocus of the National Freshwater Policy. In applying s 80A(2), there hadto be a "causal connection" in both the National Freshwater Policy and theproposed regional statement to freshwater. She submitted, if theconnection was only through some general interconnectedness of theenvironment, it would be too "remote" or "obscure" to meet the thresholdfor treatment as a freshwater planning instrument as provided for in s80A(2).43 RMA, sch 1 cls 59(6) and 64.(d) The freshwater planning process strained the concept of integratedmanagement because it provided for separate processes to develop partsof the plan that were to give effect to the National Freshwater Policy andwhich related to freshwater from those parts which did not do so. Thiswas the consequence of s 80A.(e) The establishment of the freshwater planning process to deal withfreshwater issues did not have to be completely at odds with integratedmanagement. Having different planning processes to deal with differentparts of a regional policy statement does not prevent integratedmanagement of natural and physical resources. Regional coastal plans andregional plans can and do address other regional council functionsseparately.44 It will be mandatory for the freshwater hearings panel to "besure" that its recommendations comply with the statutory requirementsthat apply to the regional council's preparation of the plan.45(f) In terms of legislative requirements, s 80A is specific and later in time thanthe sections requiring integrated management, so s 80A should prevailwhere the provisions conflict.(g) Treating the whole proposed regional statement as a freshwater planninginstrument would curtail appeal rights in respect of all resourcemanagement matters under the proposed regional statement. Thelegislative history, as detailed later in this judgment, shows that Parliamentintended the streamlined process with limited appeal rights would havelimited reach.(h) The implementation of other RMA instruments, including the NationalEnvironmental Standards for Plantation Forestry would be undermined ifthe entire proposed regional statement is a freshwater planning instrument.Those standards are intended to provide a set of nationally consistent rulesto manage the environmental effects of plantation forestry. There wouldbe significant consequences for the efficiency and effectiveness of forestry44 Section 64.45 Sch 1 cl 50(d).operations if that is undermined through the freshwater hearings panelrecommending rules more stringent than would be permitted by theNational Environmental Standards for Plantation Forestry.(i) Where the phrase "relates to" is intended to capture multipleenvironmental domains elsewhere in the RMA, this is expressly stated.For example, per s 86B(3)(a), a rule in a proposed plan has immediatelegal effect if it "protects or relates to water, air, or soil (for soilconservation)".(j) The requirement for a regional council to be satisfied as to whether aregional policy statement is or is not a freshwater planning instrument doesnot mean that a council's decision as to this is immune from challenge. Itmust make its decision by applying the correct legal test. Here, the ORChad applied the incorrect legal test and was in error in classifying the wholeof the proposed regional statement as a freshwater planning instrument.The interpretation of s 80A of the RMALegal principles[108] The meaning of legislation must be ascertained from its text and in the light ofits purpose and its context.46[109] In Commerce Commission v Fonterra Co-operative Group Ltd, Tipping J forthe Supreme Court said:47[22] The meaning of an enactment must be ascertained from its text andin the light of its purpose. Even if the meaning of the text may appear plain inisolation of purpose, that meaning should always be cross-checked againstpurpose ... In determining purpose the Court must obviously have regard toboth the immediate and the general legislative context. Of relevance too maybe the social, commercial or other objective of the enactment.46 Legislation Act 2019, s 10(1).47 Commerce Commission v Fonterra Co-operative Group Ltd, [2007] NZSC 36, [2007] 3 NZLR767. Footnotes omitted.[24] Where, as here, the meaning is not clear on the face of the legislation,the Court will regard context and purpose as essential guides to meaning.[110] In AFFCO New Zealand Ltd v New Zealand Meat Workers and Related TradesUnion Inc, Arnold J for the Supreme Court stated:48The starting point for the court's consideration of context will be theimmediate context provided by the language of the provision underconsideration. We accept that surrounding provisions may also providerelevant context, and that it is legitimate to test the competing interpretationsagainst the statute's purpose, against any other policy considerations reflectedin the legislation and against the legislative history, where they are capable ofproviding assistance. While we accept Mr Jagose's point that the context mustrelate to the statute rather than something extraneous, we do not see theconcept as otherwise constrained.Why the meaning of the legislation is not clear[111] Here, the meaning of various provisions in s 80A is not clear.[112] On its face, s 80A would appear to be about freshwater issues as if they aredistinct from other aspects of the environment. The heading to subpt 4 of pt 5 is"Freshwater planning process". Section 80A refers to a "freshwater planninginstrument" and the "freshwater planning process". Associated with this was theestablishment of a "freshwater hearings panel" and the appointment of "freshwatercommissioners" under pt 4 of sch 1.[113] Section 80A(2)(a) defines a freshwater planning instrument as meaning "aproposed regional plan or regional policy statement for the purpose of giving effect toany national policy statement for freshwater management". It does not say whether itwill be sufficient if a regional policy statement gives effect in any way to such anational policy statement. It does not say whether it is, there, referring to those partsof a national policy statement for freshwater management that relate directly to themanagement of freshwater. It does not say whether, if a regional policy statement isgiving effect to a national policy statement, it is the whole of the regional policystatement that will qualify as a freshwater planning instrument or whether it will beonly those parts that give effect to such a national policy statement.48 AFFCO New Zealand Ltd v New Zealand Meat Workers and Related Trades Union Inc [2017]NZSC 135, [2018] 1 NZLR 212 at [65].[114] Section 80A(2)(b) extends the definition of a freshwater planning instrumentbeyond what is captured by s 80A(2)(a) to include an instrument that "relates tofreshwater". This must be other than for the purpose of giving effect to a nationalpolicy statement for freshwater management, but s 80A(2)(b) does not otherwise saywhat "relates to freshwater" means.[115] There is then the limitation in s 80A(3). It says:However, if the council is satisfied that only part of the instrument relates tofreshwater, the council must—(a) prepare that part in accordance with this subpart and Part 4 of Schedule1; and(b) prepare the parts that do not relate to freshwater in accordance with Part1 of Schedule 1 or, if applicable, subpart 5 of this Part.[116] Section 80A(3) does not state that, where a proposed regional plan or policystatement has been prepared for various purposes or pursuant to various functions, theregional council must satisfy itself which parts of the instrument relate to freshwater.It is also not clear whether the proviso in s 80A(3) applies only to the way in which aninstrument would qualify as a freshwater planning instrument as referred to in s80A(2)(b). Does s 80A(3) also require a regional council to decide what parts of anational policy statement for freshwater management relate to freshwater for thepurpose of deciding whether an instrument is a freshwater planning instrumentbecause it gives effect to a national policy statement for freshwater management?Legislative process[117] As most parties acknowledged, and the select committee (the EnvironmentCommittee) recognised,49 it is not clear from the wording of s 80A what constitutes afreshwater planning instrument. It is accordingly necessary and appropriate toconsider the context in which the legislation was enacted and its purpose, as apparentfrom the legislative process.[118] On 19 June 2019, the Ministry for the Environment prepared a policydocument for Cabinet seeking a decision to amend the RMA by introducing a new49 Resource Management Amendment Bill 2019 (180-1) (select committee report) at 5-6.planning process for freshwater. The document was headed "Impact Statement: A newplanning process for freshwater" (the Policy Document).[119] In R v Howard, the Court of Appeal referred to a tendency for judgments torefer to commission and committee reports.50 The Court of Appeal said, where thelanguage in relevant legislation was clear, such reports would not be of value inconstruing the relevant phrase but "[i]t would be otherwise if the language wereambiguous".51 The Court referred to cases where such reports offered an aid to theinterpretation of legislation which was unclear on its face.52[120] In Minister of Conservation v Mangawhai Harbour Restoration Society Inc,Campbell J said there was doubt over the extent to which Cabinet papers can be usedin the interpretation of Acts of Parliament.53 He referred to the Court of Appeal'sjudgment in Sky City Auckland Ltd v Gambling Commission.54 The Court of Appeal'sreservation there was as to reliance or reference to papers that had been prepared forCabinet where their intention at the time of the relevant Cabinet meeting may bedifferent from Parliament's intention when passing the Amendment Bill into law.55These papers were distinguished from materials that were put before Parliament orwere part of the Parliamentary processes, for example, a select committee report orexplanatory notes.[121] The Policy Document is consistent with the Amendment Bill finally presentedto and approved by Parliament. It was advice prepared by the Ministry for theEnvironment and presented to Cabinet by the Minister for the Environment. It wasthis Minister who introduced the Amendment Bill to Parliament on its variousreadings. He was also responsible for the coming into force of the National FreshwaterPolicy to which the Amendment Act related.5650 R v Howard [1987] 1 NZLR 347 (CA) at 352.51 At 353.52 At 352.53 Minister of Conservation v Mangawhai Harbour Restoration Society Inc [2021] NZHC 3113 at[105].54 Skycity Auckland Ltd v Gambling Commission [2007] NZCA 407, [2008] 2 NZLR 182.55 At [40]-[41].56 RMA, s 52(2).[122] The explanatory note to the Amendment Bill when it was first introduced underthe heading "Regulatory impact assessments" stated:57The Ministry for the Environment produced regulatory impact assessments inJune and September 2019 to help inform the main policy decisions taken bythe Government relating to the contents of this Bill.Copies of these regulatory impact assessments can be found at—• • http://www.treasury.govt.nz/publications/informationreleases/ria[123] Through that link, Parliament was referred to the Policy Document.[124] The Policy Document identified that the problem requiring Governmentintervention was the continuing decline in freshwater quality, and the currentregulatory system was not producing outcomes fast enough. It said the best optionwould be to assist in councils implementing the National Freshwater Policy by 2025.This would be done by introducing a "new, faster process for planning for freshwaterunder the RMA" with a "central panel of suitably experienced freshwater hearingcommissioners to convene local panels to hear and make recommendations onfreshwater plan changes".[125] The Policy Document identified that the key problem to be addressed in orderto enable faster and improved implementation of national policy statements forfreshwater management was the statutory planning processes under the RMA. Toaddress that key problem, the Policy Document referred to its proposed approachbeing "mandatory new planning process for freshwater plan changes only". Thepurpose was not to mandate a new freshwater planning process for all new regionalpolicy statements or changes to regional policy statements. As to that, the PolicyDocument said:It is proposed that the process is restricted to policy statement or plan changesthat relate to freshwater, and would apply from the point of public notificationof the change. It is intended that the process would include regional planchanges that relate directly to water quality and quantity, and also to thecontrol of land use for the purpose of the maintenance and enhancement ofwater quality and quantity, recognising the impact the control of land use canhave on freshwater management. Plan changes this would capture could57 Resource Management Amendment Bill 2019 (180-1) (explanatory note) at 6.include, for example, changes to regional plans to set limits on water use ordischarges, such as nitrogen, or provisions to identify outstanding waterbodies to ensure the protection of these.Despite difficulties councils may face in separating out freshwater related planchanges, a clear requirement to use the process removes a perceived avenuefor challenge over the choice of process and makes it more likely that the[National Freshwater Policy] timeframes will be met, a key objective of theproposal. It is considered that requiring water related plan changes, which caninclude regional land use rules, is the most effective in terms of integratedmanagement. Only requiring freshwater related plan changes to progressthrough the process will limit the impact of the proposal on other aspects ofthe resource management system, meaning that implementation should bemore straightforward. There will also be greater consistency in decision-making regarding freshwater management throughout the country, throughstandardised procedures.[126] In advising on key groups that were likely to be interested in the proposal, thePolicy Document noted:[A]ll tangata whenua have a special interest in and relationship with water.The comprehensive review of the resource management system, and theEssential Freshwater programme will more comprehensively consider tangatawhenua perspectives.(emphasis in original)[127] The Policy Document mentioned an alternative approach of providing furtherimplementation support and the use of existing tools under the RMA to strengthenimplementation of the National Freshwater Policy. The Policy Document stated thatthe alternatives available would: not sufficiently address the overarching problem that councils arestruggling to implement the [National Freshwater Policy] in a timely manner.On the other hand, the proposed approach would enable a more effective andco-ordinated approach to freshwater planning nationally, and provide a morefit for purpose process for freshwater, which recognises the litigious, complexand costly nature of freshwater planning.[128] The Policy Document also referred to the option of a new planning process fora wider variety of plan changes. It said there needed to be more analysis to determinewhat other resource management issues might be appropriate for the proposedfreshwater planning process. As to that potential, the Policy Document said:58This widening in scope would however make the proposal less feasible. It isalready anticipated that the pool of freshwater commissioners will need toschedule and hear approximately 10-20 freshwater plan changes a yearinitially, and cover a wide skill set between them. If further topic areas wereavailable for consideration through this process, this could increase the cost,and feasibility of enabling the timely implementation of the [national policystatements for freshwater management], given that resource would be divertedto these other topic areas.It is considered that any wider changes to the planning process should beconsidered in a more integrated way, as part of the more comprehensivereview of the resource management system.[129] The Amendment Bill was presented to Parliament by the Minister for theEnvironment for its first reading on 26 September 2019.59[130] In introducing the Amendment Bill, the Minister said:60Changes are necessary to support the delivery of the Essential Freshwateraction plan, which is currently out for consultation. The Government'scommitted to improving New Zealand's freshwater quality by stopping furtherdegradation and loss, and reversing past damage. Key to achieving this willbe a new National Policy Statement for Freshwater Management under theRMA However, we already know that the majority of councils will not befully implementing even the 2017 national policy statement (NPS) until 2030or later. That 13-year delay makes it clear that the standard RMA planningprocess is too slow to implement the new freshwater NPS. So to ensure thatnecessary plan changes are made by 2025, after which time the NPS will haveprospective effect, the bill introduces a new specialised planning process forfreshwater plans [131] The explanatory note which accompanied the Amendment Bill included thesestatements:6158 At the time this proposal was formulated, the proposal was referring to the National PolicyStatement−Freshwater Management 2014 which was subsequently amended in 2017. TheMinister was working on a new National Policy Statement for Freshwater Management whichtook effect on 3 September 2020.59 Resource Management Amendment Bill 2019 (180-1).60 (26 September 2019) 741 NZPD 14222.61 Resource Management Amendment Bill 2019 (180-1) (explanatory note) at 5 and 7.Improving freshwater managementNew specialised planning process for freshwaterTo support the urgent need to improve freshwater management, the Billprovides a new plan making process that councils must use for proposedregional policy statements of regional plans (or changes) for freshwater. TheBill requires that councils notify changes to their regional policy statementsand regional plans to implement the [National Freshwater Policy] no later than31 December 2023, and make final decisions by 31 December 2025.Clause 13 repeals subpart 4 of Part 5, which relates to the collaborativeplanning process, and replaces it with a new subpart that establishes thefreshwater planning process. Regional councils must comply with thefreshwater planning process when preparing a freshwater planning instrument.A freshwater planning instrument means a proposed regional plan, regionalpolicy statement, or change or variation that—• gives effect to the National Policy Statement for Freshwater Management2020; or• otherwise relates to freshwater.[132] In its report on the Amendment Bill, the Environment Committee said that asignificant reform from the Amendment Bill would be the introduction of a newfreshwater planning process for regional or unitary councils carrying out regionalfreshwater functions.62 Those councils would be required to follow the new freshwaterplanning process for proposed regional policy statements and regional plans (includingchanges to them) containing provisions that give effect to the National FreshwaterPolicy or otherwise relate to freshwater. The new freshwater planning process wouldassist councils to meet the 2025 deadline for implementing the requirements of theNational Freshwater Policy.[133] The Environment Committee referred to the then proposed s 80A(2) and itsstatement as to the meaning of "freshwater planning instrument". The Committeereported:63We recognise that what constitutes a "freshwater planning instrument" maynot be clear-cut, and that some planning instruments may have someprovisions that relate to freshwater, and other provisions that do not.62 Resource Management Amendment Bill 2019 (180-1) (select committee report) at 4.63 At 5-6.New s 80A(4)(a) would require a regional council to notify the public of thenew freshwater planning instrument. Some of us think that, at that stage, thecouncil should provide a statement about whether the whole instrument willundergo the freshwater planning process (under Part 4 of Schedule 1), or ifonly part of it will. The part that does not would undergo the standard planningprocess (under Part 1 of Schedule 1). Some of us believe this approach wouldprovide greater transparency and reduce confusion.To effect this change, we recommend amending new section 80A(3) andinserting new clause 72(1)(A) which would insert new clause 5(2A) intoschedule 1 of the RMA.(emphasis added)[134] Before the Environment Committee reported back, s 80A(3) in the AmendmentBill had stated only "[a] regional council must prepare a freshwater planninginstrument in accordance with this subpart and Part 4 of Schedule 1".[135] The Environment Committee added the following to s 80A(3) in theAmendment Bill reported to Parliament:64However, if the council is satisfied that only part of the instrumentrelates to freshwater, the council must—(a) prepare that part in accordance with this subpart and Part 4 ofSchedule 1; and(b) prepare the parts that do not relate to freshwater in accordancewith Part 1 of Schedule 1.[136] The version enacted into law included the words "or, if applicable, subpart 5of this Part" in s 80A(3)(b).[137] The Ministry for the Environment prepared the Report on the Amendment Billin March 2020. The Report referred to and considered submissions made to theEnvironment Committee. It was made available to Parliament at the same time as theEnvironment Committee reported back to Parliament and before the second readingof the Amendment Bill began on 27 May 2020.[138] In describing the broader context of the Amendment Bill, the Ministry said:64 Resource Management Amendment Bill 2019 (180-2), cl 13.There has been growing criticism that decisions under the RMA have notresulted in positive outcomes for the natural environment. Freshwater,biodiversity and the marine domain are facing pressures from humanactivities, and in many places ecosystems are in decline. Meanwhile the costand complexity of RMA processes can form a barrier to delivering efficientsocial and economic outcomes (eg affordable housing). There is widespreadagreement that substantial reform of the RMA is needed. To address this, theGovernment has embarked on a two-staged review of the resourcemanagement system. This Resource Management Amendment Bill comprisesstage one.[139] Stage two referred to the review of the RMA by a panel chaired by a retiredCourt of Appeal Judge, Tony Randerson.[140] The Report said the objectives of the amendments proposed in the stage oneAmendment Bill were to:A. reduce complexity in existing RMA processes, increase certainty forparticipants, and restore previous opportunities for public participationB. improve existing resource management processes and enforcementprovisions, andC. improve freshwater management.In relation to the third objective, proposals in this Bill are in support of theGovernment's Essential Freshwater programme [141] As to the freshwater planning process, the Report stated:The Government is committed to improving New Zealand's freshwater qualityby stopping further degradation and loss, and reversing past damage. Key toachieving the freshwater goals is a new NPS-FM [national policy statementfor freshwater management] which is expected to be in place by mid-2020.This needs to be implemented by regional councils in a timely way if it is tobe effective.As previous noted, recent reporting from councils to the Ministry has shownthat the majority of regional councils are unlikely to meet the existing deadlineof fully implementing the 2017 NPS-FM by 2025 and are likely to take until2030 or later (the deadline can currently be extended to 2030 in certaincircumstances). The Government's view is that such delays are unacceptableand risk further degradation of rivers, lakes and aquifers.The reasons for delay are varied but include slow standard RMA plan-makingprocesses. The freshwater planning process would require plans to be in placeby 2025 which the Government sees as an essential first step.[142] The Report noted that council submitters and others had questions on the scopeof what is captured by the freshwater planning process. Some submitters suggestedthe scope was too wide, whereas others suggested it was too narrow because it waslimited to freshwater. The Report said some submitters were concerned about theseparation of freshwater from other aspects of councils' planning functions. Thesubmitters said, in that way, the Amendment Bill discouraged integrated managementacross, for instance, freshwater and coastal boundaries. The Report referred to theORC submitting that to isolate the development of freshwater planning was contraryto good integrated plan-making and resource management.[143] In its analysis of submissions, the Report said:Clarity around the scope of matters captured by freshwater planning processand integrated managementThe phrase "giving effect to the NPS-FM" [National Policy Statement forFreshwater Management], captures all requirements that arise from the NPS-FM. This includes the NPS-FM requirements to consider and recognise TeMana o te Wai and to recognise the interactions of Ki uta ki tai between theecosystems of freshwater, land and sensitive receiving environmentsincluding the coast. Planning content will also be driven by regional councilfunctions under section 30(1)(c) to control the use of land for the purpose ofthe maintenance and enhancement of the quality of water and water bodiesand coastal water and the maintenance of the quantity of freshwater.The phrase "or otherwise relates to freshwater" is intended to be a catchall forany water related matter that might not be captured under the NPS-FM. Forexample, to manage structures in the beds of rivers/lakes or flood managementpolicy/rules. This seeks to avoid a situation where a matter that is clearlywater related cannot go through the freshwater planning process because it isnot captured by the NPS-FM.Extending scope beyond freshwater (regional plans and unitary plans)Many councils want the process to be extended to capture all regional councilfunctions. Marlborough District Council, Tasman District Council and othersseek to combine regional and district plan provisions in a single process.We acknowledge the efficiencies that this may bring, but this must beconsidered against the key driver of the policy change, which is to havefreshwater planning instruments in place by 2025. Councils have told us thatreaching that date will already be a challenge. Including additional RMAmatters that need to be developed and notified by 2023 would add further tothe burden of reaching the notification date and ultimately may risk not havingfreshwater plans in place by 2025. We do not recommend a change to allowthe hearings panel to address wider regional matters or district plan provisionsat this time.Relationship to other plan reviewsWe acknowledge the points made about integrated plans, integrated catchmentmanagement and efficient processes. However the policy directive to haveplans notified by 2023 makes this change impracticable at this time. Councilsmay be able to have members in common for freshwater hearings panels andpanels dealing with other matters.(emphasis in original)[144] Similarly, the Report referred to submitters' concerns as to notificationtimeframes for freshwater planning instruments but emphasised the Government'sdesire to have all instruments notified by 31 December 2023 to halt freshwaterdegradation and start to improve water quality.[145] In its definition of "freshwater planning instrument" in s 80A(2)(a), theAmendment Bill referred to a proposed regional plan or regional policy statement forthe purpose of giving effect to the National Freshwater Policy.65 The Reportrecommended Parliament proceed with s 80A(2)(a) as in the Amendment Bill but withthe removal of the 2020 date.[146] The Report referred to s 80A(3) in the Amendment Bill as requiring regionalcouncils to prepare freshwater planning instruments in accordance with pt 4 of sch 1.It said no issues had been raised in relation to this section and they recommendedParliament proceed with s 80A(3) as drafted.[147] In introducing the Amendment Bill for the third reading on 24 June 2020, theMinister for the Environment, David Parker, said:66The bill we are considering today includes provisions to improve freshwaterquality. The bill introduces a new freshwater planning process that ensuresregional council plans are updated as soon as possible and in a mannerconsistent with Te Mana o te Wai.Interpretation of s 80A[148] The above aspects of the legislative process indicate that, with the AmendmentAct, Parliament was neither intending nor contemplating that the whole of a regional65 Resource Management Amendment Bill 2019 (180-1), cl 13.66 (24 June 2020) 747 NZPD 19015.policy statement which dealt with matters other than freshwater management wouldbe subject to the freshwater planning process.[149] Rather, the background, wording and references to freshwater in s 80A wereall consistent with Parliament contemplating that issues relating to freshwater couldbe identified as discrete matters and only such matters would be subject to thefreshwater planning process. The possibility of widening the scope of matters thatmight be considered through the freshwater planning process was brought to theattention of Cabinet and Parliament through the Ministry's initial Policy Documentand to Parliament through the Report after the Environment Committee process. Thatoption was expressly rejected primarily because it would delay progress in improvingthe quality of freshwater management which the Government was committed to.[150] The ORC and Ngā Rūnanga argued that the purposes of integratedmanagement, the fundamental concepts of Te Mana of te Wai and ki uta ki tai requiredthe ORC to recognise that all aspects of the environment and all aspects of humanactivity are interconnected and relate to freshwater. So, everything in the proposedregional statement could properly be determined to give effect to the NationalFreshwater Policy or relate to freshwater.[151] When the Amendment Act was passed in 2020, the need for an integratedapproach to the management of natural resources was already in the RMA. Ifadherence to the principle of integrated management could justify the whole of aproposed regional policy statement or plan being treated as a freshwater planninginstrument under s 80A(2)(a), there would have been no need for the particularprovision in s 80A(2)(b) or the qualification referred to in s 80A(3).[152] If Parliament had intended s 80A(3) to be a qualification only as to the wayand extent to which a regional statement might qualify as a freshwater planninginstrument under s 80A(2)(b), it could reasonably have been expected to say so. Itcould also have been expected that, if the qualification applied only to the definitionin s 80A(2)(b), it would have appeared immediately adjacent to s 80A(2)(b) ratherthan as s 80A(3) where logically it could relate to both s 80A(2)(a) and (b).[153] Significantly, the qualification to the definition of freshwater planninginstrument in s 80A(3) was added only when the Environment Committee reportedback and was not included when s 80A(2)(b) first appeared in the Amendment Bill.[154] Regional councils, including the ORC, submitted to the EnvironmentCommittee that splitting the planning processes for regional plans would make it moredifficult to provide for the integrated management of natural resources. The Ministry'sPolicy Document outlined that timely compliance and progress in accordance with theNational Freshwater Policy was the primary objective of the policy changes.[155] The Amendment Act established the freshwater hearings panel.67 It requiredfreshwater hearings panels to include five members who, collectively, have expertisein freshwater management issues.68 Although it left final decisions to the regionalcouncil, it transferred significant decision-making ability on freshwater issues to thefreshwater hearings panel and reduced the scope of potential appeals to theEnvironment Court on freshwater issues.69 I consider the Amendment Actcontemplated that the focus of freshwater hearings panels would be on protecting andimproving the quality of freshwater in New Zealand and, in particular, giving effect tonational policy statements on freshwater management by 2025. There is potential formembers with other areas of expertise to be appointed to hearing panels.70Nevertheless, I agree that Parliament contemplated the focus of the freshwaterplanning process would be narrower than the purpose of the RMA generally.[156] Regional councils must prepare regional policy statements consistently withthe purpose of the RMA, which is to promote the sustainable management of naturaland physical resources.71 Sustainable management means:72 managing the use, development, and protection of natural and physicalresources in a way, or at a rate, which enables people and communities toprovide for their social, economic, and cultural well-being and for their healthand safety while—67 Amendment Act, s 103; RMA, sch 1 pt 4.68 Amendment Act, s 103; RMA, sch 1 cls 59 and 65.69 Amendment Act, s 22; RMA, s 80A(5)(d) and sch 1 cls 54-56.70 RMA, sch 1 cl 59.71 Section 61(1)(b).72 Section 5.(a) sustaining the potential of natural and physical resources (excludingminerals) to meet the reasonably foreseeable needs of future generations;and(b) safeguarding the life-supporting capacity of air, water, soil, andecosystems; and(c) avoiding, remedying, or mitigating any adverse effects of activities onthe environment.[157] To interpret s 80A in a way that would allow the whole of a plan or policystatement to be subject to the freshwater planning process would likely result in allaspects of that instrument being considered primarily from a freshwater perspective.The legislative history indicates this is not what Parliament intended with theintroduction of s 80A.[158] I accordingly do not consider that the ORC's function of achieving integratedmanagement of natural and physical resources and the requirement to recognise andgive effect to the fundamental concepts of Te Mana o te Wai and ki uta ki tai requiredor allowed it to treat the whole of its proposed regional statement as a freshwaterplanning instrument so as to subject it to the freshwater planning process.[159] In reaching that determination, I have not sought to minimise the importanceof integrated management or Te Mana o te Wai in dealing with all resourcemanagement issues which have to be dealt with in the proposed regional statement.Te Mana o te Wai remains the fundamental concept in the National Freshwater Policy.[160] A regional council, in preparing regional policy statements and their hearingpanels in reviewing the statements, or freshwater hearings panels, will all have to giveeffect to the principles of Te Mana o te Wai and of Te Tiriti o Waitangi in theirconsideration of all matters they are separately concerned with.73[161] It will be only those parts of a proposed regional policy statement that relate tofreshwater that can be part of a freshwater planning instrument. All other parts of aregional policy statement will remain subject to the normal planning process set outin pt 1 of sch 1 of the RMA. As the affidavits from Mr Parish for the CRC and Mr73 RMA, s 61(1)(b) and (da) and sch 1 cl 50(d).Ellison for Ngā Rūnanga demonstrated, regional councils must and do work inpartnership with local iwi in carrying out all their functions under the RMA. Theywill have to continue doing this when dealing with those parts of the regional policystatement that are not subject to the freshwater planning process.[162] How councils do this and the decisions they make will be subject to review byinterested parties, with the full rights of appeal to the Environment Court which theycurrently have. They will not have the same rights of appeal as to matters that aresubject to the freshwater planning process.[163] In their submissions for the Minister, counsel referred to a statement from theEnvironment Court in Bay of Islands Maritime Park Inc v Northland RegionalCouncil.74 The Environment Court said it was the intent of the National FreshwaterPolicy and of the relevant legislation to provide an integrated approach to freshwatermanagement:75The objective was not to subsume the entire environment including the[coastal marine area] and land use within the purview of the freshwaterregulations or freshwater regime set up under s 80A. To do so would beanathema given the requirement to develop the regional plans and regionalcoastal plans separately to those for freshwater. Having said that, weacknowledge that it is intended that the [National Freshwater Policy] shouldwork together with other documents including the [New Zealand CoastalPolicy Statement] regional policies and plans and regional coastal plans tocreate a seamless whole.[164] My interpretation of s 80A recognises that Parliament established a separateplanning process for those parts of a proposed regional statement that relate tofreshwater. That being the case, those involved with both the freshwater planningprocess and the normal process in pt 1 of sch 1 will have to be fully informed as tohow matters are developing or are decided through each process to achieve theintegrated management of resources and the fundamental concept of Te Mana o te Waiand ki uta ki tai.74 Bay of Islands Maritime Park Inc v Northland Regional Council [2021] NZEnvC 6, [2021]NZRMA 256 at [32].75 At [32].Conclusion as to how s 80A must be read[165] I have concluded that s 80A(2)(a) should be interpreted and applied as if itreads "a freshwater planning instrument means a proposed regional plan or regionalpolicy statement for the purpose of giving effect to any national policy statement forfreshwater management, subject to s 80A(3)".[166] Section 80A(3) establishes a mandatory obligation for a regional council toprepare the parts of instruments that relate to freshwater through the freshwaterplanning process, and all other parts through the standard process in pt 1 of sch 1.[167] That wording is consistent with the submission made by Forest and Bird andsupported by a number of parties that s 80A(3) drives what will qualify as a freshwaterplanning instrument, either in whole or in part.[168] I thus conclude that only those parts of the proposed regional statement whichrelate to freshwater could be treated as a freshwater planning instrument and so besubject to the freshwater planning process.Why the ORC's interpretation and application of s 80A of the RMA was in error[169] It was for the ORC to make decisions as to which parts of the proposed regionalstatement relate to freshwater on a correct interpretation of s 80A.[170] I am satisfied the ORC did not do so. They considered the requirement forintegrated management of resources and Te Mana o te Wai allowed them to determinethat everything in their proposed regional statement related to freshwater or was togive effect to the National Policy Statement. For the reasons discussed, that was anerror and not an approach they were permitted to take.[171] I am not satisfied on the evidence that the ORC adequately considered whatparts of the proposed regional statement related to freshwater and which parts did not,as s 80A(3) required them to do.[172] I am also not satisfied that the whole of the proposed regional statement wasprepared to give effect to the National Freshwater Policy or the 2014 National PolicyStatement on Freshwater Management as amended in 2017. This is not surprising.The ORC had committed to significant work, consultation and investment in preparinga new proposed regional statement on the recommendation of the Minister for theEnvironment in November 2019. Nevertheless, they were aware of the AmendmentBill and a new freshwater planning process as they made submissions to theEnvironment Committee in 2019.76 They were aware of the National FreshwaterPolicy that came into effect on 3 September 2020.The Court's task[173] A number of parties, including the ORC, presented submissions on the basisthe Court would effectively review in detail the whole of the proposed regionalstatement and decide which parts could be treated as a freshwater planning instrument.[174] That would have been a daunting task. The proposed regional statement is 220pages long, has five parts and covers nine domains and topics.[175] In its submissions, the CRC acknowledged: the issues raised in this case require a detailed understanding of the functionand design of regional planning documents, and deal with difficult tensionsbetween many different interests.[176] Rayonier and Ernslaw submitted it is for the ORC to review the regional policystatement and determine which provisions meet the requirements of s 80A(2) correctlyapplied and which do not. They submitted this is because the process is likely to be ahighly technical and detailed one. They submitted it might also necessitate somerestructuring of the proposed regional statement or rewriting of certain provisions.[177] In essence, the ORC, in these proceedings, sought a declaration as to how s80A is to be interpreted and applied. Section 80A(3) makes it clear that the regionalcouncil must satisfy itself which parts of its proposed planning document relates tofreshwater in applying s 80A.76 See above at [142].[178] Appeals from Environment Court decisions come to the High Court as toalleged errors of law.77 There is limited scope under the RMA for decisions made byregional councils or other territorial authorities to come before the High Court throughjudicial review.78 In such proceedings, it is well established that it will not be for theHigh Court to make decisions as to the merits of the council's decision on the particularissue before it. The High Court's function is to identify whether there has been anerror of law. If there has been an error, the High Court may remit the issue back to theterritorial authority that made the relevant decision or to the Environment Court sothey can make a decision on the merits applying the law correctly.[179] That is the approach which should be adopted in this case. It is the ORC, notthis Court, who must exercise their statutory obligation to determine which parts ofthe proposed regional statement relate to freshwater under a correct interpretation of s80A.[180] Most of the parties however made it clear that, through these proceedings, theyare wanting the Court to provide clarity as to how s 80A is to be applied, clarity whichis lacking in the legislation as it stands.[181] The key issue is what "relates to freshwater" means and how is thatqualification to be met.[182] As referred to earlier, through their differing submissions, a number of partiessuggested different ways in which the words "relates to freshwater" might beinterpreted by regional councils in formulating their plans or policy statements anddeciding what parts should be part of a freshwater planning instrument and so subjectto the freshwater planning process.77 RMA, s 299.78 See s 296.The Court's view as to how the words "relates to freshwater" are to beinterpreted and applied[183] In the New Zealand Oxford Dictionary, "relate to" is said to mean "havereference to; or concern;79 and "concern" means be relevant or important to, relate to,or be about.80[184] Because the meaning of the legislation is unclear, the interpretation cannot bebased on just what might be considered the ordinary meaning of "relate to".[185] In Auckland Harbour Board v NZ Harbours IUOW, the Court of Appeal, on acase stated, had to decide whether a dispute over manning levels in tugs was "relatedto" a collective agreement under s 116(1)(b) of the Industrial Relations Act 1973 andso within the jurisdiction of the Arbitration Court.81[186] The Court of Appeal said:82So far as a paraphrase of the words "related to" in the particular context maybe of any help, we think that they require a sufficiently direct connectionbetween any matter of dispute and matters dealt with in the award or collectiveagreement. Very often it can only be a question of fact and degree. This headof jurisdiction is obviously wider than mere interpretation of the instrument,which is separately referred to in the standard dispute of rights clause.[187] Of significance, the Court of Appeal decided the dispute did relate to thecollective agreement, not just by deciding how "related to" might be paraphrased butby considering the issue in relation to the facts before it.[188] In Mercury NZ Ltd v The Waitangi Tribunal, the High Court was concernedwith a judicial review challenge to a preliminary determination of the WaitangiTribunal proposing to exercise the resumption power as to two significant areas ofland.83 Section 8A(2) of the Treaty of Waitangi Act 1975 provided that the WaitangiTribunal can recommend that land or an interest in land transferred to a State enterprise79 Graeme Kennedy and Tony Deverson (eds) The New Zealand Oxford Dictionary (OxfordUniversity Press, Melbourne, 2008) at 948.80 At 225.81 Auckland Harbour Board v NZ Harbours IUOW (CA217/86), 28 October 1987.82 At 969.83 Mercury NZ Ltd v The Waitangi Tribunal [2021] NZHC 654, [2021] 2 NZLR 142.be returned to Māori ownership where a claim relates in whole or in part to land or aninterest in land to which the section applies. In the High Court, Cooke J said theWaitangi Tribunal had analysed the requirement that a well-founded claim "relates to"land covered by these provisions in detail. The Tribunal referred to previous dicta tothe effect that legislation concerning the Treaty should not receive a narrowinterpretation. It concluded the provisions gave a broad jurisdiction to provide aremedy for the adverse consequences of all land-based claims, whether or not the well-founded claims concerned the land in question.84[189] In discussing how the words "relates to" were to be considered, Cooke J said:[69] I accept without hesitation that the provisions should receive a broadand unquibbling interpretation. The dicta along these lines strike me as amanifestation of the requirement that the text of an enactment should beinterpreted in light of its purpose. It can be presumed that Parliament intendedto give full effect to the principles of the Treaty when enacting Treaty-relatedprovisions, particularly provisions intended to remedy Treaty breaches. Theultimate question is what the particular purpose of these provisions is in lightof that presumption.[70] One begins with the text of the enactment. On its natural reading therequirement that the claims "relates to" the land means that the claims concernthat land. Moreover, the fact that the enactment directs the "return" of the landwould suggest that the claim concerning the land would be about thecircumstances under which the land left the possession of Māori, thusproviding the justification for the land to be returned. The requirement that theclaim be "well-founded" essentially means that the Tribunal is upholding theclaim giving rise to the remedy of return of the land. The three concepts –"well-founded" claims, "relates to", and "return" – are inherently interlinked.[72] I do not agree that the true scope of the provisions turns on the literalinterpretation of the words that have been concentrated upon. I do not agreethat the words "relates to" mean something substantially different from "inrespect of" as the Tribunal held, and as the Muriwhenua Land Tribunal said.There are various verbal formulations that could have been used: "relates to","in respect of", "concerning," "over" or even just "about". All these phraseshave somewhat elastic meanings that depend on the circumstances of their useto gain any more precise content. It is the circumstances of their use in theseprovisions in light of the other words of the sections and the purpose of theprovisions as a whole that is decisive in my view.(footnotes omitted)84 At [52].[190] Cooke J then discussed various aspects of the background to the passing of therelevant legislation including other legislation which led him to the conclusion that,for land to be caught on the basis it was related to a claim before the Tribunal, it hadto have been land that was wrongly taken from the Māori owners by the Crown. Thisjudgment illustrates how the meaning of "relates to" has to be established in light ofthe purpose and context in which the words were used and, importantly, the factualcontext of the case.[191] The words "relates to freshwater" must be interpreted having regard to thepurpose for which s 80A was enacted. That purpose was to address the decline infreshwater quality in New Zealand.85[192] Section 80A(3) drives the interpretation of s 80A. Because of this, parts of aregional policy statement will qualify to be part of a freshwater planning instrumentpursuant to either s 80A(2)(a) or (b) if they directly relate to the maintenance orenhancement of the quality or quantity of freshwater.[193] In accordance with s 80A(2), parts of the proposed regional statement mayrelate to freshwater management in the manner required to be part of a freshwaterplanning instrument either through the way those parts give effect to the NationalFreshwater Policy or through otherwise relating to freshwater. Parts that give effectto the National Freshwater Policy will only qualify if they are giving effect to thoseparts of the National Freshwater Policy that directly relate to the maintenance orenhancement of freshwater quality or quantity.[194] As to this, the ORC will have to first determine which parts of the NationalFreshwater Policy are directly concerned with the quality or quantity of freshwater asdefined in s 2 of the RMA. The ORC's concern will be with those parts of the policywhich relate directly to matters impacting on the quality or quantity of freshwater,including groundwater, in lakes, rivers, wetlands or in estuaries that are part of thereceiving environment.85 See above at [126]; Resource Management Amendment Bill 2019 (180-1) (explanatory note) at 5.[195] A number of provisions in the National Freshwater Policy do not relate directlyto the quality or quantity of freshwater. A number of provisions are aspirational inreferring to the benefits that might be obtained from improving freshwater quality, forexample, reference to the obligations in Te Mana o te Wai to prioritise the health andwellbeing needs of people.86[196] There are parts of the National Freshwater Policy, particularly the fundamentalconcept of Te Mana o te Wai and ki uta ki tai, that refer to the values tangata whenuaattach to the quality of freshwater and the need for those values to be recognised in themanagement of freshwater issues.87[197] There are parts of the National Freshwater Policy that impose administrativeobligations on regional councils that will assist in maintaining water quality but whichmight not have to be referred to in a regional policy statement.88[198] There are parts of the National Freshwater Policy that, on their face, do notpurport to be directly related to maintaining or improving water quality or quantity.89[199] Conversely, parts of the National Freshwater Policy do clearly relate directlyto freshwater quality and require regional councils to maintain and enhance the qualityof freshwater. For instance, the establishment of freshwater management units for itsregion90 and the ensuing provisions as to how these units are to operate and be utilisedto maintain and improve water quality.91 There can be little doubt that the Minister, inrecommending to the Governor-General that the National Freshwater Policy bepublished in September 2020, intended that regional councils would give effect to suchparts of the National Freshwater Policy to facilitate that happening without delay.Insofar as a regional policy statement does so, those parts would be subject to thefreshwater planning process.86 National Freshwater Policy, cl 1.3(4).87 Clause 3.2.88 See cls 3.23 (mapping and monitoring of natural inland wetlands); 3.27 (monitoring primarycontact sites); 3.29 (setting up freshwater accounting systems) and 3.30 (assessing and reporting).89 For example, cl 3.33 applies only to specified vegetable growing areas as identified in an appendixto the National Freshwater Policy.90 National Freshwater Policy, cl 3.8.91 Clauses 3.7(2), 3.9−3.17, 3.22−3.24, 3.28 and 3.32.[200] The National Freshwater Policy is concerned with the quality of freshwater andthe effects on the receiving environment of freshwater on a whole of catchment basis.This does not mean that any part of a regional policy statement concerned with thecatchment for or receiving environment from freshwater will relate to freshwater forthe purpose of s 80A. It will be only to the extent parts of the proposed regionalstatement regulate activities in the catchment or receiving environment, because oftheir effect on the quality or quantity of freshwater, that policies or objectives for thecatchment or receiving environment will relate to freshwater for the purposes of s 80A.[201] It is not for this Court, in the context of these proceedings, to decide whichparts of the National Freshwater Policy relate to freshwater management in the mannerrequired for the purposes of applying s 80(2). The ORC will however have to makethat determination when considering whether any particular part of the proposedregional statement relates to freshwater through the way it gives effect to the NationalFreshwater Policy.[202] In accordance with s 80A(2)(b), there may potentially be other ways in whichprovisions in the proposed regional statement can qualify to be part of a freshwaterplanning instrument. For that to be so, the ORC will have to satisfy itself that thoseparts relate directly to matters that will impact on the quality and quantity offreshwater, including groundwater, lakes, rivers and wetlands. The ORC will alsohave to satisfy itself that the parts are not concerned with sea water or are part of aproposed regional coastal plan or a change or variation to that plan.92[203] Consistent with the purpose of the Amendment Act and participatory rightsunder the RMA, in applying s 80A, the starting point must be that all of the proposedregional statement will be subject to the normal planning process set out in pt 1 of sch1 of the RMA. It will be only those parts of the proposed regional statement thatdirectly relate to freshwater management, in the manner just discussed, that can beparts of a freshwater planning instrument and so subject to the freshwater planningprocess.92 With reference to s 80A(8) of the RMA.[204] With such an approach, the ORC could not decide that, because there is aprovision that relates to freshwater within a specific chapter, the whole of that chaptershould be treated as relating to freshwater. Conversely, there may be a chapter which,to a significant extent, relates to freshwater. That is likely to be true as to the chapteron land and water. Nevertheless, there may be policies, objectives or rules in a landand water chapter that do not relate to freshwater. Such parts of that chapter, in termsof s 80A, could not be treated as part of a freshwater planning instrument.[205] The national planning standards require that there be a chapter in a proposedregional statement on urban form and development. In that chapter there may beobjectives, policies or rules that are directly for the purpose of managing freshwater.It will be only those parts of a topic chapter on urban form and development that relatedirectly to freshwater management that can be part of a freshwater planninginstrument.[206] Parts of a proposed regional statement cannot be treated as parts of a freshwaterplanning instrument simply because there is some connection to freshwater throughthe concepts of Te Mana o te Wai, ki uta ki tai or the integrated management of naturaland physical resources. To hold otherwise would be contrary to Parliament's intentionin s 80A and pt 4 of sch 1 to establish a dual planning process where only parts of aregional policy statement directly relating to freshwater would be subject to thefreshwater planning process.[207] This does not mean that the fundamental concept of Te Mana o te Wai, ki utaki tai and integrated management of natural resources can be disregarded either in theplanning process in pt 1 of sch 1 or in the freshwater planning process.[208] They will be fundamental to regional councils in the formulation of a proposedregional policy statement and to the Environment Court when it might have to considerissues arising out of a regional policy statement on appeal. To the extent thoseprinciples are relevant to matters that are not part of the freshwater planning process,those who consider such principles have not been adequately recognised by a regionalcouncil will have full rights of appeal to the Environment Court. That Court is aspecialist tribunal, well equipped to recognise the importance of integratedmanagement of natural and physical resources and the fundamental concept of TeMana o te Wai. Submitters would not have such rights of appeal if the matters theyare concerned with are to be subject to the freshwater planning process.[209] It will be for the ORC to decide, in the particular circumstances it faces andwith the report if has already prepared, how it recognises s 80A(3) and prepares thoseparts that do relate to freshwater as a freshwater planning instrument.[210] As the Ministry for the Environment foreshadowed, it may be that someregional councils will prepare a specific regional freshwater plan or a plan change thatonly gives effect to the National Freshwater Policy so that all provisions in suchdocuments will go through the freshwater planning process.93What, if any, declarations should be made in light of the earlier conclusions inthis judgment?[211] In its statement of claim, the ORC sought the following declarations:1. The Proposed Otago Regional Policy Statement 2021 is a freshwaterplanning instrument under section 80A(1)−(3) of the ResourceManagement Act 1991.2. The Otago Regional Council may continue to prepare the Proposed OtagoRegional Policy Statement 2021 in its entirety under the freshwaterplanning process in Subpart 4 of Part 5 and Part 4 of Schedule 1 of theResource Management Act 1991.3. In the alternative to (1) and (2), if the Court finds that Otago RegionalCouncil may not continue to prepare part of the Proposed Otago RegionalPolicy Statement 2021 under the freshwater planning process in Subpart4 of Part 5 and Part 4 of Schedule 1 of the Resource Management Act1991, then:(a) That part must be prepared in accordance with Part 1 of Schedule 1of the Resource Management Act 1991; and(b) That part must be removed from the freshwater planning process inSubpart 4 of Part 5 and Part 4 of Schedule 1 of the ResourceManagement Act 1991 and further prepared in accordance with Part1 of Schedule 1 of the Resource Management Act 1991; and(c) That part need not be re-notified under Schedule 1 of the ResourceManagement Act 1991; and93 A new Freshwater Planning Process: Technical guidance for councils, above n 40, at 13.(d) The remainder of the Proposed Otago Regional Policy Statement2021 must continue to be prepared, and need not be re-notified underthe freshwater planning process in Subpart 4 of Part 5 and Part 4 ofSchedule 1 of the Resource management Act 1991.4. Such or further order as the Court thinks fit.[212] In its submissions, the ORC sought the declarations in 1 and 2. With thisjudgment, the Court will not make those declarations. The ORC did not presentdetailed submissions in support of the latter alternative declarations.[213] Forest and Bird submitted that "the declaration sought by ORC" be declined.They submitted only part of the proposed regional statement that related to freshwaterwas the land and freshwater domain chapter. The balance of the proposed regionalstatement, they submitted, had to go through the process in pt 1 of sch 1.[214] Port Otago submitted that the response to questions formulated by the ORCshould be:(a) The proposed regional statement is not a freshwater planning instrument.It contains policies that do not relate to freshwater, including policiesrelating to coastal water.(b) The parts of the proposed regional statement that are not a freshwaterplanning instrument are those parts which either:(i) are not for the purpose of giving effect to a national policy statementfor freshwater management; or(ii) do not otherwise relate to freshwater.[215] Oceana Gold submitted the Court should make a declaration that the proposedregional statement was a freshwater planning instrument under s 80A(2)(b) and not s80A(2)(a), and should identify, as required by s 80A(3), those parts of the proposedregional statement that relate to freshwater and are therefore to proceed under thefreshwater planning process, and those that do not must be progressed using thestandard process.[216] The QLDC submitted the first and second declarations should be declined. Itsubmitted the third declaration should also be declined given the ORC had providedno details on what statutory process would be followed.[217] The Dunedin City Council and Waitaki District Council submitted that "thedeclaration" sought by the ORC should not be issued. They submitted the Court coulddeclare that only the parts of the proposed regional statement which they had referredto relate to freshwater, and the balance of the proposed regional statement needs tofollow the normal pt 1 of sch 1 procedure in the RMA for its development.[218] Rayonier and Ernslaw submitted that declarations 1 and 2 should be declined.They supported declaration 3 with the proviso that, if changes were to be made to thepart of the proposed regional statement that is a freshwater planning instrument, thenthat must be publicly notified in accordance with s 80A(4)(a) of the RMA. If changesare made to that part of the proposed regional statement that is not a freshwaterplanning instrument, then that must be publicly notified in accordance with cl 5 of sch1 of the RMA.[219] Ngā Rūnanga submitted only declarations 1 and 2 should be made.[220] The CRC, given its neutral position, said it was not making any submissionsas to the merits (or otherwise) on the declaration sought.[221] The Minister, also adopting a neutral position, made no submissions as to what,if any, declarations might be appropriate.[222] The submissions as to declarations from a number of parties were premised onthe basis the Court would be deciding which parts of the proposed regional statementrelated to freshwater and which did not. That task remains with the ORC.[223] Advice to the ORC from its officers for the meeting where they considered thestatus of the proposed regional statement and whether it should be publicly notifiedwas that "[w]hen the [proposed regional statement] is publicly notified, the publicnotice must state whether Council [sic] is satisfied that the document is a freshwaterplanning instrument. This dictates the process or processes used for hearing anddetermining submissions on the document."[224] The proposed regional statement was publicly notified on Saturday 26 June2021. The notice advised that submissions could be made but had to be received by3.00 pm on 3 September 2021. Submissions were received from 1,463 parties. In heraffidavit, the manager of policy and planning for the ORC advised the primarysubmissions covered "every aspect of the proposed regional statement" and there aremultiple parties who have submitted in support or opposition to the proposed regionalstatement in its entirety.[225] A summary of decisions requested was notified on 30 October 2021. A further59 submissions were received as to the summary of decisions requested.[226] On 11 November 2021, the ORC advised the Chief Freshwater Commissionerof the names of its two nominees for appointment to the freshwater hearings panel.On 17 December 2021, the Chief Freshwater Commissioner appointed four of the fivemembers of the freshwater hearings panel. The fifth member, the tangata whenuanominee, was unavailable to be appointed at that time and was appointed on 17January 2022.[227] Section 80A(3) requires the ORC to prepare the parts that do not relate tofreshwater in accordance with pt 1 of sch 1. This process has time limits for steps thathave to be taken in the planning process. The ORC does have power to extend timelimits, as provided for in ss 37 and 37A of the RMA.[228] In accordance with this judgment, only parts of the proposed regional statementthat are to be a freshwater planning instrument will be subject to the freshwaterplanning process.[229] The ORC will now have to reconsider and decide which parts of the proposedregional statement relate to freshwater for the purposes of s 80A. Section 80A(3)(a)requires that those parts must be prepared in accordance with subpt 4 of pt 5 and pt 4of sch 1 of the RMA. Section 80A(4) requires the regional council to publicly notifythe freshwater planning instrument. The freshwater planning process begins withpublic notification of the freshwater planning instrument.94[230] There has been no valid determination as to which parts of the proposedregional statement are parts of a freshwater planning instrument so there has been nonotification of a freshwater planning instrument to begin the freshwater planningprocess set out in pt 4 of sch 1. Those parts of the proposed regional statement thatwill not be part of a freshwater planning instrument have been publicly notified, anddo not need to be re-notified. They have not been processed in accordance with thenormal pt 1, sch 1 process because of the ORC's decision to treat the whole of theproposed regional statement as a freshwater planning instrument, and because of theuncertainty associated with these proceedings.[231] The declarations I make are as follows:(a) The Otago Regional Council's determination that the whole of theproposed Otago Regional Policy Statement 2021 is a freshwater planninginstrument under s 80A(1)−(3) of the Resource Management Act 1991 wasin error and not in accordance with the requirements of s 80A.(b) The Otago Regional Council must now satisfy itself as to which parts ofthe proposed regional statement relate to freshwater and so constitute afreshwater planning instrument through giving effect to the NationalPolicy Statement for Freshwater Management 2020 or otherwise relatingto freshwater.(c) Following its determination as to that, the Otago Regional Council mustcontinue with the preparation of those parts of the plan that are not part ofthe freshwater planning instrument, in accordance with the process set outin pt 1, sch 1 of the RMA.94 RMA, sch 1 cl 37.(d) Those parts of the proposed regional statement that are determined by theOtago Regional Council to be parts of a freshwater planning instrumentare to be publicly notified as a freshwater planning instrument, and are tobe subject to the freshwater planning process in subpt 4 of pt 5 and pt 4 ofsch 1 of the RMA 1991.Costs[232] The ORC brought these proceedings to obtain clarification from the Court asto whether the basis on which it had determined the whole of its proposed regionalstatement as being a freshwater planning instrument was in accordance with s 80A ofthe RMA. They did this because of the acknowledged lack of clarity in the legislationas to how it was to be applied. A number of the parties acknowledged the responsibleway the ORC had put the matter before the Court for consideration and did not seekcosts. The proceedings are such that costs should lie where they fall.Concluding summary[233] On 26 June 2021, the Otago Regional Council notified the whole of itsproposed regional statement as a freshwater planning instrument to be subject to thefreshwater planning process which became part of the RMA in 2020. It made thisdetermination to achieve integrated management of all natural resources and inaccordance with the concept of Te Mana o te Wai and ki uta ki tai in the NationalPolicy Statement for Freshwater Management that came into effect in September2020. The council's determination was supported by Otago iwi. It was challenged bya number of district councils, Forest and Bird, Port Otago, Oceana Gold and two majorforestry companies.[234] In this judgment I have held that, with the 2020 amendment to the ResourceManagement Act, Parliament contemplated there would be dual planning processes asto matters that the Otago Regional Council had to deal with in its proposed regionalstatement. Only those matters that relate to freshwater would be subject to thefreshwater planning process with the more limited rights of appeal associated withsuch a process.[235] With the legislation, there is uncertainty as to what "relates to freshwater"means and thus uncertainty as to which parts of the proposed regional statement couldbe a freshwater planning instrument and so subject to the freshwater planning process.[236] In this judgment I have held it is only those parts of the proposed regionalstatement that relate directly to the maintenance or enhancement of freshwater qualityor quantity that can be treated as parts of a freshwater planning instrument. The wholeproposed regional statement could not be treated as a freshwater planning instrumentand so subject to the freshwater planning process on the basis this was necessary toachieve integrated management of resources or recognition of Te Mana o te Wai andki uta ki tai. There was thus an error of law in the Otago Regional Council decidingthat the whole of its recently notified proposed regional statement was a freshwaterplanning instrument to be dealt with under the freshwater planning process.[237] The Otago Regional Council had notified the whole of its proposed regionalpolicy statement in the manner required by the RMA. There have been a great numberof submissions to the regional council about many aspects of the regional policystatement. I have held that the council need not renotify those parts of its proposedregional statement which, on reconsideration in accordance with this judgment, itdecides are not parts of a freshwater planning instrument. Those parts will be subjectto the normal planning process provided by the RMA with existing rights of appeal tothe Environment Court.[238] The Court has made declarations that:(a) the Otago Regional Council's determination, that the whole of its proposedregional policy statement was a freshwater planning instrument, was inerror;(b) the Otago Regional Council must now reconsider the proposed regionalpolicy statement and decide which parts of it do relate to freshwater in theway the legislation requires for those parts to be subject to the freshwaterplanning process; and(c) the Otago Regional Council will then have to notify those parts of theproposed regional statement which are to be treated as a freshwaterplanning instrument and begin again the freshwater planning process as tothose parts.Solicitors:Ross Dowling Marquet Griffin, DunedinP D Anderson, Royal Forest and Bird Protection Society of New ZealandL A Andersen QC, Barrister, DunedinP E M Walker, Environment Law, DunedinS W Christensen, Barrister, DunedinM R Garbett and R A Kindiak, Anderson Lloyd, DunedinJ M Derry, Ministry for the Environment, WellingtonR G Muston, Crown Law OfficeP A C Maw, Wynn Williams, ChristchurchK T Dickson, Wynn Williams, ChristchurchS J Scott, Simpson Grierson, ChristchurchS R Gepp, Barrister, NelsonK L Hockly, Lane Neave, Queenstown-LakesM A Baker-Galloway, Anderson Lloyd, Queenstown-Lakes.