Week in Review

Uncertainty swirls over Mackenzie dairy plan

The legal battle over a large dairy farm planned for the Mackenzie Basin is heading to the High Court. David Williams reports.

The future of the Mackenzie Basin’s Simons Pass Station – a lightning rod for national environmental opposition – remains as unclear as a swirling effluent pond.

Dunedin businessman Murray Valentine has spent 16 years and millions of dollars gathering approvals, court settlements, and building infrastructure for a $100-million-plus dairy development at Simons Pass, near Lake Pukaki. Valentine told Newsroom last year he plans to irrigate 4500 hectares at the property – some of which is Crown lease land – and stock more than 15,000 animals, including 5500 cows. (The average herd size in New Zealand is 431 cows. The national herd is five million milking cows.)

As of late last year, 840 cows were being milked and Valentine says the development is about a quarter finished.

Last November, Canterbury’s regional council, ECan, gave Simons Pass a boost by publicly confirming the company’s irrigation consents, despite not having completed a baseline survey, which was one of the conditions of its consent. Official documents released to Newsroom reveal that decision was made against its own ecological advice.

Then, last month, Simons Pass’s irrigation plans hit an obstacle, with the Environment Court making declarations – sought by Mackenzie’s council – that it required further consents, under stricter district plan rules, to undertake irrigation and direct drilling. (Direct drilling is when seeds are drilled into unploughed soil.) Simons Pass has now appealed to the High Court.

Adding to the complex picture is the fact Mackenzie’s council, which has spent more than $1.4 million over a decade ushering in tougher development rules, confirms it has issued Simons Pass with an abatement notice for irrigating a portion of its land without consent.

And sitting above all this is tenure review.

Land Information New Zealand, the government agency tasked with running the controversial practice, expects consultation on a “substantive proposal” for Simons Pass to begin soon. That means the Mackenzie lease may slip through a closing net, successfully undertaking tenure review before the Government scraps it.

Rare and fragile

The Mackenzie Basin is recognised as a nationally significant and fragile environment, home to a multitude of rare and threatened plant and animal species. Valentine’s development has, therefore, prompted staunch opposition, including Greenpeace protesters chaining themselves to diggers and trucks during irrigation pipeline work in July last year.

Valentine bought Simons Pass in 2003 and has subsequently bought the neighbouring property, Simons Hill. (For simplicity, we’ll refer to the combined properties, including Crown lease land, as Simons Pass.)

One of the most important of Simons Pass' approvals is a water permit from Environment Canterbury, which was central to this year’s Environment Court case. Other permit holders have relied on their consent to undertake more intensive farming.

The Mackenzie council asked the court to make a declaration that, under district plan rules – which have arrived in waves since 2007 as Environment Court decisions washed in – Simons Pass needed resource consents to intensify its farming operation. The council also argued, and the court agreed, that the farming company needs further consents for irrigation.

A crucial element to the court hearing, held in February, was whether Simons Pass’ regional council irrigation consent was considered “granted” under district plan rules by a certain date, which would allow certain agricultural work to go ahead. The district council, supported by the Environment Defence Society (EDS), argued the consent could only be considered “granted” when appeals had been withdrawn and final consent orders issued. (Environmental lobby groups Forest & Bird and Mackenzie Guardians opposed the consents, but eventually settled in October 2016.)

The court’s April 1 declaration said that after April 13, 2017, any agricultural conversion by direct drilling and irrigation at Simons Pass needed consent. A key part of the decision is that the purpose of plan change 13, which governs farm development, is to provide greater landscape protection.

“It’s important because it decides the future of that large property, which is arguably likely to be the last major conversion, or dairy conversion attempt, in the Mackenzie district part of the basin.” – Gary Taylor

Simons Pass filed its High Court appeal on April 18.

The notice of appeal, provided to Newsroom by the Environment Court, says the court erred in law and the declaration was unfair to Simons Pass, as it had already been through a lengthy, costly and comprehensive consenting process. (There is debate over whether the regional council consents properly addressed the effects of intensive farming on areas considered to be outstanding natural landscapes.)

Showing a slightly scattergun approach, Simons Pass also asks the High Court to rule that the council can’t regulate irrigation – something the Environment Court refused to do, warning “this could well be a matter of regional, if not national importance”.

EDS says it will apply to join the appeal, which executive director Gary Taylor described as surprising and disappointing. “I thought it was a pretty robust decision that wasn’t really capable of being upset – that’s just a personal view. We’ll see what the High Court says.”

He adds: “It’s important because it decides the future of that large property, which is arguably likely to be the last major conversion, or dairy conversion attempt, in the Mackenzie district part of the basin.”

Valentine is adamant Simons Pass is being treated differently to other regional council irrigation consent holders. “We’re saying that the Environment Court dealt with the issue as an environment court – by considering the environment – as opposed to dealing with the law, which they were asked to do.”

The Mackenzie District Council said it was inappropriate to comment as the matter was before the court.

Advice initially withheld

Valentine had no comment on the revelation ECan acted against its own ecological advice to allow Simons Pass to activate its irrigation consents without completing a baseline survey. “That’s their decision,” he says.

But Nicky Snoyink, the Canterbury-Westland regional manager of lobby group Forest & Bird, says it’s extraordinary for a council to ignore its own technical advice.

Newsroom asked ECan for its ecological advice last November. It initially refused to release it, saying the advice was legally privileged. However, ECan released the information after Newsroom complained to the Ombudsman.

In an October 26 email, ecologist Philip Grove, ECan’s science team leader, said in his opinion Simons Pass had not done enough to allow irrigation to commence. “From a technical/ecology perspective beginning irrigation before completion of baseline survey ... defeats the purpose of the baseline survey condition.”

While acknowledging improvements made or proposed to Simons Pass’ initial survey work, Grove told his colleagues there had been problems with the surveys and there were still “gaps” in threatened plant and vegetation survey information.

“I guess it is up to you to decide whether what they have provided to date is sufficient. That would be a legal/pragmatic decision rather than a technical decision.”

An ECan compliance monitoring report dated November 8, addressed to Valentine, confirmed the initial survey didn’t include lizards or invertebrates, as required. The report noted “action required” by Simons Pass for breaching the base survey condition, but the regional council had already accepted an amended plan which would see the information completed by June – next month.

“The decision to exercise this discretion at the time was based on assessment of overall effects, the mitigations that were being proposed by Simons Pass and legal advice at the time.” – Nadeine Dommisse

Days before the compliance report was sent – and just 10 days after Grove’s email – ECan confirmed publicly it had decided Simons Pass could begin irrigating some of its land, despite the baseline survey not being completed.

ECan’s chief operating officer Nadeine Dommisse tells Newsroom: “The decision to exercise this discretion at the time was based on assessment of overall effects, the mitigations that were being proposed by Simons Pass and legal advice at the time.”

Simons Pass has provided “significant mitigations” to avoid risk to the dryland recovery area, she says, including limiting the irrigation area. “We are confident that any risk to the environment is low and we are continuing to monitor their activities very closely.”

But Forest & Bird’s Snoyink is flabbergasted. “A baseline survey is a survey of what was there before you started your activity so that you can measure any changes to the baseline survey once the activity has started. I totally agree with Philip, that they shouldn’t have let [Valentine] proceed with his activity until he had met all the conditions of his consent.”

In his email last October, Grove also raised questions about the potential effects of farming operations on adjoining land – specifically a 2554-hectare dryland recovery area, another condition of Simons Pass’ settlement with Forest & Bird and Mackenzie Guardians. (About 1350ha of that is on pastoral lease land. Simons Pass agreed to spend at least $100,000 a year to restore indigenous species in the dryland recovery area.)

Native plants under threat

Indigenous vegetation clearance has been an ongoing issue at Simons Pass.

In a sworn affidavit in 2016, Forest & Bird’s Jen Miller, Snoyink’s predecessor, told the Environment Court that it fought certificates of compliance and irrigation consent approvals given to Simons Pass because of high ecological values on the property.

“However, we subsequently learned in late 2014 that much of the indigenous vegetation on Simons Pass had been destroyed,” she wrote. “I was shocked and dismayed by the destruction of the very important native vegetation on Simons Pass. We subsequently settled our Environment Court appeal as there was little point in continuing with it in light of the destruction of most of the terrestrial ecological values on the site.”

The Mackenzie District Council confirms it has issued Simons Pass with an abatement notice, although it won’t say when. Karina Morrow, the council’s group manager of regulations, says it was issued for alleged irrigation within so-called “pivot 21” near an area containing the farm’s operating dairy shed.

“The abatement notice required all irrigation to cease within pivot 21 as no land use consent had been obtained for this. Council has no evidence to suggest the abatement notice has not been complied with.”

Valentine says the abatement notice was the result of a complaint. “We were not doing what they were saying we were doing when we got the abatement notice so there was no issue.”

Racing against the clock

Rare native plants are fast disappearing from the Mackenzie Basin, including from Crown pastoral leased land.

Research published in 2017 found the law controlling tenure review was being ignored in the Mackenzie Basin. Bizarrely, the more rare or threatened the ecological values, the more likely it was to be freeholded through tenure review – which, through agreement between the Crown and lessee, splits a pastoral lease between conservation and freehold.

Backing up that research was another published paper, which found two-thirds of intensive development in the Mackenzie since 2003 happened on Crown-owned land or land freeholded through tenure review.

Simon Pass’s pastoral lease seems to be a good case study.

The Commissioner of Crown Lands, who manages pastoral leases, has given Simons Pass approval for stocking, scrub clearance, tree felling, sowing seed, topdressing, cultivation, tracking, tree planting and soil disturbance. (Snoyink says those approvals are examples of a series of bad decisions made by multiple agencies. Concern that agencies were working in isolation prompted the launch of the Mackenzie Basin Agency Alignment Programme, which is chaired by Dommisse.)

A preliminary tenure review proposal for Simons Pass has already been advertised to privatise 4310 hectares of the Crown lease, with 1265 hectares earmarked for conservation.

Land Information New Zealand’s Jeremy Barr, the group manager of Land and property, Christchurch, confirms that Department of Conservation staff inspected Simons Pass earlier this year to get up-to-date information on conservation values. “We are expecting to receive their report in the coming weeks. Following that we will begin consultation on a substantive proposal.

It seems likely, then, that Simons Pass will be able to get through tenure review before the Government passes legislation to scrap it.

Snoyink says there are some beautiful parts left on the pastoral lease and there should be close scrutiny of the latest ecological assessments. “It has a beautiful glacial feature there called ‘The Necklace’ and that is where the Tasman Glacier came down in the last ice age, all the way down there.”

Not that Valentine’s concerned. He confirms tenure review’s still being pursued but “if it doesn’t happen, well, it doesn’t happen”.

“If it happens then the Crown will get that land. If it doesn’t happen, we’ll farm it.”

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