The Curious Case Of Coastal Wetlands
Authors: Olivia Manning, Associate, Berry Simons and Rebekah Hill, Solicitor, Berry Simons
Both the Environment Court and High Court have recently considered whether the “natural wetland” provisions of the Resource Management (National Environmental Standards for Freshwater) Regulations 2020 (NES) apply to wetlands within the Coastal Marine Area (CMA).
The Environment Court held that the NES only applies to areas of the CMA upstream of the river mouth, not the broader CMA. However, the High Court on appeal quashed those declarations and held that the NES does apply to natural wetlands in the CMA.
These contrasting decisions have resulted, in our opinion, primarily from a lack of cohesion across the various provisions that are used to define wetlands. These provisions are spread across the NES, the associated National Policy Statement on Freshwater Management 2020 (NPS) and the Resource Management Act 1991 (RMA).
While there is no issue in principle with such an approach, unfortunately in this circumstance the provisions do not integrate as clearly as they could have. This has caused practical difficulties in implementing the NES and consequently, achieving its anticipated outcomes.
Through examining the High Court decision in greater detail, this article seeks to explore the relevant definitions, articulate the current legal position as determined by the High Court, and consider practical issues arising from the NES natural wetland provisions as they currently stand.