EDS's litigation

We use strategic legal cases to hold business and government to account when they fail to protect our environment

We have over 50 years of experience and know how to use the legal system as a lever of change, how to enforce the law, and how to win.

EDS seeks out novel and innovative litigation that can change the law for the better.

Recent case

Port Otago Limited v Environmental Defence Society [2021] NZCA 683

In this case, the Court of Appeal considered the King Salmon precedent. The Court put the issue of the case simply: whether a proposed regional policy statement that provides that adverse effects in outstanding natural landscape areas will be “avoided, remedied or mitigated” gives effect to the NZCPS requirement that such effects be “avoided” (in Policy 13).  The Court found that it was “obvious” that the policy statement did not give effect to the NZCPS as required by s 62(3) of the RMA (at [78]–[79]). The Court gave the caveat that this does not pre-empt decision making about activity status (by, for example, requiring activities to have a prohibited status). Rather, it is the effects that must be avoided (at [85]).

Additionally, the Court engaged in some commentary about King Salmon:

  • The bottom-line approach reflects the original intent of the RMA. The overall broad judgement (OBJ) approach is overruled by King Salmon at planning stages superior to resource consent applications (at [55]).
  • Because the NZCPS was produced against the OBJ approach, there is a “regulatory mismatch” where a policy instrument sets out “quasi-rules” (at [57]). The King Salmon decision may have made the NZCPS more rigorous that the Minister intended (at [57]). Nonetheless, the Court is bound by it.

It also noted that the NZCPS contains its own “directive hierarchy” (at [82]). The avoidance policies (policies 11, 13, 15 and 16) set the bottom lines within which the other policies must operate, including the strategic planning policy (policy 7) and the ports policy (policy 9).

Overall, the decision continues to entrench the validity of the bottom-line approach. It will be important to watch the implications of the case for the new National Planning Framework and the future of the NZCPS in light of oceans reform.


Our victories

Environmental Defence Society v New Zealand King Salmon Company Ltd [2014] NZSC 38

The Supreme Court decision of Environmental Defence Society v New Zealand King Salmon Company is often cited as one of EDS’s biggest victories.

It confirmed that the New Zealand Coastal Policy Statement (NZCPS) sets a firm environmental bottom line for coastal landscapes which needs to be given effect to. This was in contrast to the overall broad judgment approach which had previously been adopted in interpreting the Resource Management Act 1991 (RMA).

Under the overall broad judgment approach, it was considered that the word ‘while’ in the chapeau of the purpose section of the RMA (section 5), acted to separate the environmental effects contained in subparagraphs (a)-(c) from the economic considerations in the chapeau; and that these effects had to be balanced against one another.

The Supreme Court held that the definition of sustainable management must be read as an integrated whole and the environmental effects described in subparagraphs (a)-(c) must be observed in the course of the management referred to in the opening part of the definition.

The Supreme Court also determined that, although section 5 does not create primacy for environmental protection (through the setting of environmental bottom lines), in certain circumstances sustainable management may require that particular environments be protected from the adverse effects of inappropriate activities. These circumstances will be defined by other planning documents, which themselves may set strict environmental bottom lines. In this case, the NZCPS set strict bottom lines by requiring the avoidance of adverse effects on outstanding natural landscapes in the coastal environment (including from effects from activities outside such landscapes).



Environmental Defence Society v New Zealand Aluminium Smelter Ltd

In late 2019, EDS initiated legal proceedings against New Zealand Aluminium Smelter Ltd regarding the unsafe storage of ouvea premix at the old Mataura Paper Mill, which was subject to flooding. Ouvea premix, when wet, releases ammonia gas which is harmful to human and aquatic life.

The declarations filed in the Environment Court sought, inter alia, recognition that the company had a duty under section 17 of the Resource Management Act to avoid, remedy or mitigate an adverse effect on the environment arising from its activities. However this argument was never tested in the Court.

Due to the complexity of the situation, mediation was the preferred way forward. After 12 judicial settlement conferences facilitated by Alternate Judge Newhook a Court-facilitated agreement between the parties was reached and the ouvea premix was removed back to the Tiwai Aluminium Smelter site.