Court’s cryptic move to protect rare plant
Why was an urgent case taken against a Canterbury farmer? David Williams reads the fine print
It was a rare show of unity.
Last Monday, Forest & Bird, the Department of Conservation, and two rūnanaga asked the Environment Court to place protection orders over paddocks at an oceanside farm south of Christchurch. The Christchurch City Council and Canterbury Regional Council also backed the interim orders.
The phalanx of officialdom contrasted with the fragmentation shown by agencies over the past two years, since Kaitorete Spit farmer Brent Thomas destroyed almost a third of the country’s wild population of the rare plant shrubby tororaro, or Muehlenbeckia astonii.
Conservation lobby group Forest & Bird originally sought an order to prevent further destruction and for the area to be rehabilitated. The legal battle against Thomas’s company Wongan Hills was put on hold in the hope a sale of the narrow, 10km-long sheep and beef farm, wedged between Te Waihora/Lake Ellesmere and the Pacific Ocean, would resolve the dispute.
The substantive case is alive and sale negotiations are ongoing.
What exactly led to last week’s urgent Environment Court hearing, however, was somewhat of a mystery. It was held behind closed doors – “in chambers”, in the legal parlance.
Even Judge Jane Borthwick’s decision, made public last Thursday, was a little vague. Thomas’s company Wongan Hills was ordered to “cease and not recommence farming activities, including spraying, direct drilling and the removal of individual native plants”.
What triggered the hearing wasn’t explicitly stated.
Forest & Bird chief executive Kevin Hague said in a press statement last week: “This is really the best that could be made of a bad situation.” He added, nebulously: “Significant loss has already occurred.”
Adding to the confusion was farmer Thomas’s contention he’s “pleased with the outcome of the interim orders”, noting they were “agreed by all parties”.
The matter only went to a hearing, of course, because the parties couldn’t agree. “The respondents opposed the making of the interim enforcement orders,” the Environment Court order states.
It is in the court order’s fine print where crucial details are revealed.
The interim enforcement orders restrict agricultural development on parts of the Kaitorete farm. On certain, named paddocks, Thomas, and his companies Wongan Hills and Willesden Farms, are banned from spraying with herbicide, cultivating, direct drilling, removing individual native plants and grazing cattle.
Paddock two, the interim orders said, was “previously sprayed in April 2020” – just last month. Wongan Hills was ordered to “mark all identifiable M. astonii in the sprayed area and avoid direct drilling or further spraying over those plants”.
The order requires monitoring of “the survival of M. astonii plants inside the sprayed area” and “if” any live plants are identified, they must be fenced from cattle.
Newsroom asked Thomas if spraying, last month, on at least paddock two led to the latest court dispute. He sent a copy of a statement circulated to other media.
It says: “I absolutely respect that parts of my property and wider Kaitorete Spit have high cultural and ecological values. We’re committed to working with all stakeholders to make sure an appropriate balance is struck between the protection and careful management of high value areas and farming elsewhere on the property.”
A balance should be struck to allow farming, cultural and ecological interests to be protected, and, he adds, “in fact enhanced”.
“We are 100 percent committed to protecting and actively growing the Muehlenbeckia astonii population and other endemic species on the Spit.”
The plot thickens, however. Wongan Hills has an active consent application with the city council to install irrigation and stock water pipelines across three of its paddocks, including paddock two.
Most woody vegetation, including shrubby tororaro, in paddock two was killed by herbicide in 2018. But, the consent application says, “there remain small numbers of pohuehue, broom and shrubby tororaro which show signs of regrowth”.
(Paddock one is said to contain more than 1500 shrubby tororaro plants, while paddocks three-to-six, are thought to have about 300.)
Council spokeswoman Jocelyn Ritchie says of Wongan Hills’ application: “It is still being processed, so no decisions have been made.”
Meanwhile, Thomas says: “No decision has been made as to whether and how that might be progressed further.”
The application, lodged last October, says earthworks for the “mainline” pipe will stretch some 4.6km. The route was, “some time ago”, “scraped of most vegetation over a width of 1m”, the Planz Consultants report says.
A full botanical survey wasn’t undertaken. The report says the entire route “was not assessed in great detail to record and classify plants”.
Thomas tells Newsroom: “No shrubby tororaro were or will be lost as a result of the pipeline proposal.”
The Planz Consultants report suggests Kaitorete might soon be more intensively farmed. Paddock one is lightly grazed by sheep, but that situation is “volunteered” and “may not be permanent”.
“The district plan would permit a full range of grazing effects (including by cattle).”
Last week, Forest & Bird’s press statement said it was critical the Environment Court orders prevented “some paddocks with extremely high values being grazed with cattle”.
Bumpy road to a potential sale
A topic the interim orders do mention in some detail is the farm’s possible sale, to local rūnanga Te Taumutu and Wairewa.
The ecologically sensitive strip of land, which neighbours a DoC scientific reserve, is highly significant to Māori. (Kaitorete is also home to several threatened or at-risk native species of lizards, moths, and birds – including banded dotterel and NZ pipit.)
The court decision says an agreement has been reached, in principle, to sell the whole farm, but a formal sale and purchase agreement is yet to be signed.
It hasn’t been smooth sailing, however. Forest & Bird requested mediation because it understood the property’s sale was “in doubt” and a mediated land management agreement was in “jeopardy”. That initial concern appears to have cascaded into last week’s hearing.
Forest & Bird must be buoyed by the recent support it had from agencies. It hasn’t always been the case.
When the conservation group announced it was taking court action, it said it wasn’t confident the Christchurch City Council would act “appropriately and promptly” on its complaint.
At the time, Department of Conservation manager Andy Thompson told RNZ he accepted Thomas didn’t realise how rare and important the shrubs were. (Internal DoC correspondence says Thomas was informed of their importance, but didn’t state when. Against staff advice, and under pressure from Thompson, DOC negotiated a side agreement on consent conditions with Thomas. The department was notably absent from a subsequent water consent hearing.)
The city council muddied the waters by issuing Wongan Hills with a certificate of compliance for some indigenous vegetation removal and grazing, despite the court action. Forest & Bird’s lawyer, Peter Anderson, told Newsroom in 2018 the certificate should never have been issued.
Even now, two years later, the best way of resolving the dispute appears to be the purchase of the farm. Parties to the Environment Court case have to provide the judge with progress on a potential sale next month.
Spokespersons for Te Taumutu & Wairewa Rūnanga tell Newsroom, via email: “Yes, we are interested in procuring the entire property at Kaitorete and discussions are underway.”
There’s the prospect, however, of a continuing involvement by Thomas’s farm companies.
The court’s decision state an agreement is subject to “a number of material conditions, including agreeing the terms of a lease-back arrangement”.
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