Pressure groups are increasingly using judicial review and the courts as a vehicle for policy changes.  In recent months, the Environmental Law Initiative (ELI) have won six cases in relation to the marine, freshwater and biodiversity decision makers.

Two cases stand out: ELI v Director-General of Ministry for Primary Industries & Ors (MPI Decision),^[1] and ELI v Environment Southland (Southland Decision).^[2]

The context of the MPI Decision and Southland Decision cases

The MPI Decision concerned a review of processes aimed at protecting marine wildlife and mammals in New Zealand. The Fisheries Act 1996, Wildlife Act 1953 and Marine Mammals Protection Act 1978 (MMPA) were the three governing regimes in this case. ELI claimed that MPI’s preference to contract out its obligations under one regime, by relying on other statutory processes, meant that commercial fishing was threatening the survival of relevant fish species. 

The Southland Decision concerned a review by ELI of Southland Regional Council’s Resource Management Act 1991 (RMA) obligations to monitor and act to preserve the Southland wetlands. ELI claimed the Council failed its statutory obligations by failing to separate its monitoring and mapping obligations and failed to take appropriate action where necessary. ELI was again successful.  

The use of resources for one statutory purpose may not fit others

The Court has reinforced that public entities cannot use evidence of compliance under one regime, to meet the requirements of other statutory regimes. This applies despite what an entity considers may be ‘similar’ requirements. 

In a reporting context, the Court in the MPI Decision found that DOC’s preference to use evidence for Fisheries Act regime compliance as evidence for compliance under other regimes was unlawful and insufficient. This was because the requirements under the Fisheries Act were less stringent than those under the Wildlife Act / MMPA, where separate reporting regimes and evidence were required. Attempting to use evidence under the Fisheries Act as compliance for other Acts was therefore itself reviewable - something ELI spotted and challenged.   

Equally, ELI was again successful in the Southland Decision where the Court noted that the Council was not meeting its statutory obligations to preserve the Southland wetlands, despite the Council having to prioritise its limited resources. This was despite what the Court said were the Council’s “laudable” efforts otherwise to engage in community education, engagement initiatives and strengthening the scientific capabilities around the wetlands. Relevantly, the Council engaged in mapping, and attempted to assert this went towards its duty to ‘monitor’ under the RMA. The Court disagreed, finding that the Council’s ‘mapping’ did not amount to monitoring. Further action was required, such as ground inspections.^[3]

Importantly, the Court found that despite limited resourcing, the Council still could not “derogate from the duties imposed on it by Parliament” under the RMA. This is a clear cautionary warning for other government entities and public entities with statutory obligations.

Failing to exercise statutory discretion may be unlawful 

These decisions are also clear that a public actor cannot fail to act.

In the Southland Decision, the Court observed that while the Council had wide discretion to perform its statutory obligations and duties (such as monitoring), particularly in relation to the wetlands, those duties must still be performed. Non-action was not acceptable.   

In the MPI Decision, the Court slammed the Department of Conservation (DOC) for failing to utilise its statutory tools available to it - despite DOC considering those tools inefficient - that being the population management plans under the Wildlife Act and MMPA. In that case, the Court found that since 2009, DOC had failed to utilise PMPs, owing to it considering PMPs to be “difficult” in the past. This preference against utilising PMPs, despite it being a statutory tool, was held to be a ‘de facto policy’ against using it, which amounted to a reviewable error.  

Accordingly, this failure or refusal to use this statutory tool was unlawful. That was despite DOC believing its alternative methods were more effective at achieving the same statutory outcomes. 

What does this mean for you? 

Take these lessons and consider them in the context of your organisation’s statutory obligations and prioritisation.

Tactical judicial review is increasingly a risk that should feed into your assessments of how you are going to meet your statutory obligations, particularly in this fiscal environment. 

Wildlife Act permits - unable to ‘inadvertently kill’ 

Finally, this week ELI have successfully challenged NZTA’s Wildlife Act 1953 permits provided under s 53. A separate FYI will follow on this point. 

Our leading New Zealand public law practice is ready to assist you in any aspect of this. Please contact our experts to discuss your next steps. 

Special thanks to Amarind Eng for his assistance writing this article.