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University of Otago Law Theses and Dissertations |
Last Updated: 19 September 2023
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Animal Welfare and the Resource Management Act 1991
Considering animal welfare under the Resource Management Act 1991 would improve the holism of resource management in Aotearoa and address shortcomings of the Animal Welfare Act 1999
Oska Rego
Dissertation submitted in partial fulfilment of the degree of Bachelor of Laws (Honours) at Te Whare Wānanga o Otāgo – the University of Otago
6 October 2017
Acknowledgements
Finishing this dissertation comes toward the end of five years living in Ōtepoti Dunedin. I am indebted to a host of people who have contributed to it being a truly special time in my life, and command my most heartfelt gratitude.
Thank you to my dissertation supervisor; Marcelo Rodriguez Ferrere, and second marker; Associate Professor Ceri Warnock. You have both provided unhesitant and impassioned guidance and input that has been invaluable to me; both in completing this work, and across the past few years. I extend my recognition to the wider Faculty of Law, for fostering an accommodating and supportive learning environment.
I am deeply appreciative of the Aotearoa animal advocacy community, particularly those who I have worked alongside in Ōtepoti. Your determined efforts to make the world a more compassionate place catalysed and motivate my focus on animal law.
To my dear friends, who give me so much affection, joy and inspiration; I sincerely love you, and feel blessed to have you all in my life.
Finally, I am incredibly grateful, and proud, to have a strong, caring and exuberant family that is full of role models. Aroha nui ki te whānau.
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“Animals can communicate quite well... And they do.
And, generally speaking, they are ignored”
- Alice Walker Living by the Word (1988)
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Contents
Glossary 1
Introduction 2
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1.
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Status Quo: Animal Welfare Law in Aotearoa
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4
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(a)
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The Animal Welfare Act 1999
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4
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(b)
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Shortcomings of the Animal Welfare Act
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10
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(c)
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The Resource Management Act 1991
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15
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(d)
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Consideration of Animal Welfare Under the Resource Management Act
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22
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2.
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Proposal: Include Animal Welfare in Resource Management
Practice
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27
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(a)
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Animal Welfare is Relevant Under the Resource Management Act
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27
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(b)
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How Regard to Animal Welfare Should Inform Resource Consent Decisions
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39
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(c)
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Accommodating Animal Welfare in the Resource Management Act Framework
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42
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(d)
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Use of the Resource Management Act Would Improve Animal Welfare
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46
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3.
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Case Study: Intensive Dairy Farming in the Mackenzie Basin
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51
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(a)
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The Proposed Farms and Resource Consent Application Process
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51
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(b)
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How Regard to Animal Welfare Might Have Affected the Decisions Made
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54
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(c)
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Animal Welfare Standards Could Have Provided Guidance
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57
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(d)
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Considering Animal Welfare Would Have Ensured Better Decision-Making
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61
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Conclusion 64
Bibliography 65
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Glossary
Animals: Used to refer to non-human animals. Aotearoa: Used interchangeably with New Zealand. AWA: Animal Welfare Act 1999.Codes: Codes of Welfare prepared under the Animal Welfare Act 1999.
Consent authority: A regional, district or city council, or combination thereof, responsible for granting resource consents.
Director-General: The chief executive of the Ministry for Primary Industries. ECan: Environment Canterbury (Canterbury Regional Council).
Five Freedoms: Five core aspects of animal welfare; proper and sufficient food and water, adequate shelter, opportunity to display normal patterns of behaviour, handling which minimises pain and distress, and protection from injury and disease.
Inspectors: Police constables and persons employed or appointed to enforce the Animal Welfare Act 1999.
MAF: Ministry of Agriculture and Forestry (the Ministry for Primary Industries since 30 April 2012).
MPI: Ministry for Primary Industries.
NAWAC: National Animal Welfare Advisory Committee. NES: National Environmental Standard.
RMA: Resource Management Act 1991.
RTT: Research, testing and teaching.
Rule: A rule in a Regional or District Plan, which functions as a regulation. SPCA: Royal New Zealand Society for the Prevention of Cruelty to Animals The Code: Refers to the Animal Welfare (Dairy Cattle) Code of Welfare 2010, and the 2014 and 2016 versions of the Dairy Cattle Code of Welfare.
The Minister: The Minister for Primary Industries. WAC: Wild Animal Control Act 1977.
WDC: Waitaki District Council.
Introduction
The Animal Welfare Act 1999 (AWA) of Aotearoa (New Zealand) recognises, in its long title; “that animals are sentient.” Aotearoa is a country that uses a lot of non-human animals (hereafter referred to as animals),1 and it is implicit in anthropogenic animal use that animal welfare will at times be compromised.2 Under the status quo, managing this compromise is a task that falls on the AWA. In my first chapter, I set out how it does this, with a focus on the Act’s permissive nature with regard to animal use, and its reliance on a reactive enforcement regime to protect animals’ welfare,3 both for their sake as sentient beings, and for the purpose of “maintaining New Zealand’s trading reputation overseas.”4 I discuss the shortfalls of this approach, before turning to the Resource Management Act 1991 (RMA).
Designed as a broad, holistic statute, the RMA manages New Zealand’s environment by taking, by contrast to the AWA, a cautious approach. This approach is predicated on proactive planning, and scrutinising the anticipated effects of activities before allowing them to occur. I discuss the limited attention RMA practitioners have hitherto paid to animal welfare, and its links to environmental management. In the second chapter I set out my substantive proposal in the second chapter. I interpret the RMA’s wide conceptualisation of the environment as encapsulating animal welfare, and argue that decisions made under the RMA that impact animals should therefore be made with regard to effects on them. I discuss how this would work in practice, how the RMA’s framework of instruments could support
consideration of animal welfare, and the improvements that taking this proactive approach would make. I believe that my proposal could improve animal welfare outcomes by enabling transparent discussion about animal use, and efficiently reducing the pressure on the AWA.
In my final chapter, I flex my proposal by applying it to the case study of intensive indoor dairy farming in the Mackenzie Basin. After outlining the controversial saga involved, I discuss how implementing my proposal could have changed the course of the decision- making involved, including how proactive use of RMA planning instruments could have aided the practitioners involved. I finish by setting out why I believe applying my proposal to such cases would, in the interests of both humans and animals, improve the quality of decision-making and reduce the risk of animal welfare being harmed.
1 Status Quo: Animal Welfare Law in Aotearoa
This chapter sets out the protection currently afforded to animals under New Zealand law. Firstly, I focus on the AWA, which provides the main legal framework for promoting animal welfare in Aotearoa. I set out the key elements of this Act, and then outline its shortcomings that are addressed by the proposal I set out in the following chapter. I then outline the proactive planning and consenting regime provided by the RMA, and examine the rare occasions where animal welfare has been considered under it. Because the proposal I set out in the following chapter applies to activities that already go through the resource consent process, I do not discuss provisions that apply to types of animal use that do not come within the purview of the RMA. This includes wild animals, who are offered protection through the Wildlife Act 1953,5 and domestic pets, the ownership of which is regulated both by the AWA, and in the case of dogs, more specifically by the Dog Control Act 1996.6
(a) The Animal Welfare Act 1999
The AWA is the primary statute that serves to protect the interests of animals in Aotearoa New Zealand.7 It provides all of the legal protection that is, in practice,8 afforded to the welfare of animals in New Zealand. It built substantially upon its predecessor, the Animals Protection Act 1960, and the common law protection afforded to animals owned by humans by virtue of animals’ legal classification as property. This common law protection is limited to people being deterred from harming someone else’s animals due to the risk of being sued by the property-holder.9 The AWA, by contrast, promotes animal welfare by imposing
criminal liability on persons who ill-treat or fail to care for animals.10 Provided that they adhere to the limits and standards set by the AWA, people are legally entitled to use animals that they own however they wish, in the same way as any other property.11
Part 1 of the AWA is aimed at ensuring that the welfare needs of animals under human control are attended to.12 Section 10 imposes an obligation on owners and persons in charge of animals to meet their “physical, health, and behavioural needs” in accordance with “good practice” and “scientific knowledge.” “Person in charge of an animal” has been expansively interpreted as covering people with “effective control” over animals.13 Those in charge of animals must meet the following needs, commonly referred to as the “Five Freedoms”:14
(a) proper and sufficient food:
(ab) proper and sufficient water:
(b) adequate shelter:(c) opportunity to display normal patterns of behaviour:
(d) physical handling in a manner which minimises the likelihood of unreasonable or unnecessary pain or distress:
(e) protection from, and rapid diagnosis of, any significant injury or disease, — being a need which, in each case, is appropriate to the species, environment, and circumstances of the animal.
224 at [24], in which the shooting of a horse was considered to be wilful damage to property, but the pain suffered by the animal was not considered to be an aggravating factor.
In addition, pt 1 requires the alleviation of “unreasonable or unnecessary pain or distress.”15 These obligations protect the interests of animals, and are enforceable as strict liability offences.16 They carry maximum penalties of 12 months’ imprisonment or a $50,000 fine in the case of an individual, and a fine of up to $250,000 in the case of a body corporate.17
Part 2 of the AWA prohibits ill-treatment of animals. This is defined as causing suffering:18
by any act or omission, pain or distress that in its kind or degree, or in its object, or in the circumstances in which it is inflicted, is unreasonable or unnecessary.
Such ill-treatment is a strict liability offence. There are also offences relating to several specific forms of conduct, such as encouraging animals to fight or using prohibited traps.19 These all carry the same maximum penalties as those for failing to meet pt 1 obligations, set out above.20 The Act deems reckless and wilful ill-treatment as being more serious. The maximum penalties for reckless ill-treatment of animals are three years’ imprisonment or a$75,000 fine for individuals,21 and $350,000 fines for body corporates.22 Wilful ill-treatment is punishable by up to five years’ imprisonment or a $100,000 fine in the case of individuals,23 and a $500,000 fine for a body corporate.24
The provisions of the AWA are softened with qualified language that serves to allow animal use notwithstanding adverse effects on animal welfare. The Act does not afford animals absolute protection from pain or distress; it targets what is “unreasonable or unnecessary.”25
Furthermore, the needs protected by s 10 are qualified by what “is appropriate to the species, environment, and circumstances of the animal.”26 Ill-treatment is defined in relation to “the circumstances in which [pain or distress] is inflicted.”27 Under the Animals Protection Act 1960, it was held that pain or distress will be deemed unreasonable or unnecessary where it is out of proportion with resultant increased commercial efficiency.28 The Court of Appeal, in Erickson v Ministry for Primary Industries, recently reaffirmed that what amounts to ill- treatment depends on the purposes for which an animal is kept.29 It is MPI’s view that “general accepted” practices should be allowed to occur.30 The Act, therefore, allows humans to inflict some degree of pain and distress on animals. Its general tone is permissive; the duties it imposes regulate, rather than prevent, human use of animals.
Specific animal welfare standards may be set through the issuing of codes of welfare (codes). These set minimum animal welfare standards and outline best practice approaches to animal use.31 Non-compliance with a minimum standard set out in a code is treated as a prima facie breach of the Act,32 while compliance with any relevant minimum standards offers a defence to the AWA strict liability offences of failing to meet obligations of care under pt 1,33 and ill-treatment of an animal.34 Codes are issued by notice in the New Zealand Gazette at the discretion of the Minister for Primary Industries (the Minister), after considering advice from the National Animal Welfare Advisory Committee (NAWAC).35 During the development of codes, NAWAC are required to consider, inter alia, submissions made, good practice,
scientific knowledge and available technology.36 NAWAC may, and invariably does, take into account “practicality and economic impact.”37 In a similar vein, the Governor-General may, by Order in Council,38 make regulations for purposes such as prescribing standards and policies,39 setting animal welfare standards,40 and prohibiting activities.41 Before recommending such an Order, the Minister must consult persons they “believe are representative of interests likely to be substantially affected.”42 This consultation will typically be undertaken through MPI or NAWAC.43
The provisions of the AWA can be enforced by three types of “inspectors.” These inspectors possess a range of powers to enforce the Act by, inter alia, investigating potential breaches,44 seizing animals,45 mitigating suffering,46 and issuing infringement notices.47 Firstly, there are inspectors employed by MPI,48 which tend to focus on farming operations.49 Secondly, the Royal New Zealand Society for the Prevention of Cruelty to Animals (SPCA) are an “approved organisation” empowered to recommend the appointment of inspectors.50 Inspectors employed by the SPCA deal with both companion and farming animals.51 No other
38 Animal Welfare Act 1999, ss 183(1), 183A(1), 183B(1) and 183C(1). 39 Section 183(1)(b).
40 Section 183A(1).
41 Sections 183A(1)(a)(iii) and 183B(1)(a).
such organisations have hitherto been approved to enforce the AWA.52 Finally, the New Zealand Police are included in the AWA definition of inspector.53 Unlike MPI and approved organisation inspectors, they hold an additional power to stop vehicles.54 The monitoring and enforcement roles played by inspectors are crucial to the AWA, as it is predominantly a reactive statute that seeks to respond to animal welfare issues as they arise.55
The AWA takes a restrictive and proactive approach to managing the international export of live animals, and the use of animals in research, testing and teaching (RTT). These activities are prohibited, unless approved by the respective regimes set out in pts 3 and 6.56 This is in contrast to the AWA’s general approach, as outlined above, of permitting animal use and only stepping in through its enforcement mechanisms when animal welfare is unduly harmed. It is an offence to export a live animal without an animal welfare export certificate, which can be obtained by applying to the chief executive (Director-General) of the Ministry for Primary Industries (MPI).57 In considering such applications the Director-General must have regard to, where relevant, matters such as the applicant’s animal exporting experience, the species and state of the proposed animals, the nature of the proposed journey, international standards and New Zealand’s reputation.58 They may impose any number of conditions on the certificate to provide for animal welfare.59 RTT involving animals is, by default, prohibited under the AWA,60 but may be carried out and is exempted from the Act’s criminal offence provisions where approved by an animal ethics committee following a code of ethical
Animal Welfare Amendment Bill (Departmental Report, February 2014) at 14.
conduct that has been approved by the Director-General.61 Although enforcement of the animal export and RTT regimes appears to be scant,62 their existence does ensure that these forms of animal use undergo scrutiny, on a case-by-case basis, before occurring.
(b) Shortcomings of the Animal Welfare Act
The AWA’s predominantly reactive approach to promoting animal welfare forgoes proactive control of activities with the capacity to be harmful to animals.63 The scale of the task of monitoring animal use constrains the effectiveness of this approach.64 With the exception of live animal export and using animals for RTT, the Act permits animal use by default.65 This means there is an absence of critical scrutiny of animal uses ahead of them occurring.66 Where users of animals do not comply with pts 1 and 2, the regime is reliant on such breaches being detected by inspectors. There are, however, inherent challenges in discovering animals being harmed. The task of monitoring animal use requires extensive resources and personnel in a country that uses as many animals as Aotearoa. These animals often exist on isolated paddocks, and behind the walls of indoor farms, slaughterhouses, and laboratories.67 This prevents outsiders from being able to know if harms to animals are going beyond what could
be considered reasonable or necessary.68 It is unlikely for inspectors to be informed of animal welfare breaches in these places, where the only people who see issues are likely to be implicated in the pain or distress, employed by the business responsible, or unwilling to report a fellow member of a small rural community.69 This is exacerbated by the SPCA’s policy of not accepting anonymous complaints.70 Breaches of the AWA will inevitably often go unreported, due to animals being voiceless victims.71 MPI (under their previous guise as the Ministry of Agriculture and Fisheries; MAF)72 themselves have said that “[t]here is limited or no information available about animal welfare compliance on the 97.5 per cent of farms for which no complaint[s are] received.”73
Shortcomings in the state’s enforcement of the AWA serve to blunt its effectiveness. In practice, police in Aotearoa tend to be untrained in this area and make a minimal contribution to AWA enforcement.74 MPI employs around 56 animal welfare inspectors to monitor the welfare of the tens of millions of commercial sector animals that it takes responsibility for.75 There are also around 190 veterinarians (as of February 2014) operating as part-time animal
69 At 72.
welfare inspectors across slaughter premises.76 MPI (then MAF) note that this approach means few “‘eyes and ears’ on farms.”77 Their annual budget for animal welfare compliance is around $3,100,000;78 which is well under half of the $7,000,000 to $9,000,000 budget the SPCA struggle to run their National Inspectorate on.79 Furthermore, MPI’s long-term goals make no mention of animal welfare, but do include improving “sector productivity”.80 Given that increasing agricultural productivity usually involves reducing the welfare of animals involved,81 this demonstrates a problematic conflict of interest within MPI as enforcers of the AWA. Inspecting and prosecuting New Zealand’s farmers, for example, slows agricultural productivity and tarnishes the “brand” that MPI is charged with enhancing.82 It is unclear if any safeguards are in place within MPI to manage tensions between animal welfare and sector productivity.
Enforcement of the AWA is heavily dependent on the SPCA; a charitable organisation that is reliant on volunteers, and donations from the public to fund its enforcement functions.83 The SPCA employs around 75 inspectors to carry out this role as part of its National Inspectorate,84 which “is primarily funded by donors, supporters, grants and... SPCA Op Shops.”85 The only government funding it currently receives is around $350,000 to $400,000 annually from MPI. This is not, however, a guaranteed regular income source, and only covers around five per cent of the SPCA’s National Inspectorate budget.86 In addition to
being underfunded, by enforcing the criminal law the SPCA is serving a function that is otherwise entirely performed by the state. It is expected to balance its monitoring and prosecutorial roles with functions such as animal rescue and advocating for social and political change.87 Not only are these facets of the organisation in competition with each other,88 it is unusual for a body that takes partisan political positions on certain issues, such as by calling for rodeo to be banned,89 to be exercising powers of the state. The AWA’s reliance on a charity and a government department, both with conflicting functions and relatively meagre funding and inspector numbers, is cause for concern regarding whether enough is being done to uphold the public interest in enforcement of the AWA. These concerns are noted by MPI, although they believe that their Memorandum of Understanding with the SPCA is sufficient to ensure adequate public accountability.90
Where animal welfare issues do come to the attention of inspectors, they must be particularly serious to warrant allocation of the resources necessary to commit to following up on concerns, gathering evidence, and pursuing prosecutions.91 Intervening in cases of non- compliance with the AWA, through legal action, ongoing monitoring, and convincing and assisting animal uses to comply with the Act, carries high costs,92 but those responsible for enforcement of the AWA are operating on tight budgets.93 Not only must there be reasonable grounds to believe an offence has been committed for an inspector to be allowed to
investigate,94 limited resources leads to cases being prioritised “based on urgency and seriousness.”95 This means that animals must be clearly unjustifiably harmed before steps are taken to prevent those responsible from harming animals again.
AWA prosecutions and sentencing can also be found wanting. Few cases of people failing to properly care for animals, or ill-treating them, are investigated and successfully prosecuted. In 2015, for instance, the SPCA investigated to 15,219 animal welfare complaints (13,577 in 2014) complaints, but successfully completed just 61 prosecutions (58 in 2014).96 This does not include complaints not responded to, and only covers animal welfare offences that are actually reported. In the overall Aotearoa justice system, the rate of prosecution is estimated as being over one hundred times higher.97 The sentencing of animal welfare offending is lenient and inconsistent. For example, relatively low fines are imposed in cases of farming malpractice causing large numbers of animals to suffer, whereas animal cruelty cases involving one or a few animals have used starting points of imprisonment for a year or more.98 Sentences of fines in the agricultural context allows for them to be absorbed as costs of business, rather than sending a strong message about the importance of avoiding “unreasonable” animal suffering. Inconsistency also arises from a lack of access to precedents, and a dearth of guidance from the upper courts, due to very few cases being
appealed beyond the District Court.99 This state of affairs serves to rob the AWA of much of its potential to act as a deterrent for animal welfare offending.
(c) The Resource Management Act 1991
The RMA was enacted to create a single, holistic planning framework for Aotearoa.100 Its central purpose is “to promote the sustainable management of natural and physical resources,”101 which it seeks to achieve by governing uses of land,102 the coastal marine area,103 beds of lakes and rivers,104 and water,105 as well as discharges into or onto water, land, and air,106 and unreasonable noise.107 By contrast to the AWA, the RMA has a restrictive ethos and takes a proactive approach to regulating effects on the environment, by scrutinising the costs and benefits of activities before they are allowed to proceed.108 It imposes a duty on every person “to avoid, remedy, or mitigate any adverse effect on the environment arising from an activity carried on by or on behalf of the person.”109 The RMA confers broad powers on the Environment Court to adjudicate on challenges to decisions made under the Act, and to enforce it.110 This is a specialist court, well versed in dealing with the often complex and conflicting bodies of scientific evidence presented in the course of environmental adjudication.111
The RMA provides for the creation of a hierarchy of documents which set policies and rules to guide people making decisions under the Act. National environmental standards (NES’s) set regulations that prescribe national-level minimum standards, methods, and requirements.112 National and regional policy statements set out objectives, policies and methods for achieving the Act’s purpose.113 Regional and district plans exist to assist the management of natural and physical resources by setting regional and district rules (rules),114 which have the legal “force and effect” of regulations.115 Regional plans manage the use of, inter alia, water, the coastal marine area, and discharges into or onto land, air and water on a regional scale.116 District plans manage land-use, at the smaller district level.117 These documents are used to determine whether activities require resource consent, and guide the consent application process.118 Policy statements and plans are to prepared in order to achieve the purpose of the RMA,119 and assist local authorities in carrying out their functions,120 which include achieving integrated resource management.121 All of these instruments must give effect to those that sit higher in the RMA hierarchy.122 This means, for example, that district plans must be consistent with regional policy statements and plans, which must in turn be consistent with NES’s.
is usually one Judge and one Environment Commissioner. As per s 253, Commissioners must have knowledge of, inter alia, economic and community affairs, planning and heritage protection, environmental science, architecture, minerals technology, dispute resolution, and kaupapa Māori.
118 Section 104(1)(b).
119 Sections 59, 61(1)(b), 63(1), 66(1)(b), 72 and 74(1)(b).
120 Sections 61(1)(a), 63, 66(1)(a), 72 and 74(1)(a)
121 Sections 30(1)(a) and 31(1)(a). 122 Sections 62(3), 67(3) and 75(3).
The process for creating policy statements or plans involves extensive public consultation.123 Having prepared a proposal, local authorities are required to assess the extent to which it is appropriate for achieving the purpose of the RMA,124 and publicly notify the proposed policy statement or plan.125 Any person may make a submission on the proposed document,126 and be heard at a hearing hosted by the local authority.127 The local authority must then give, with reasons, a decision on each matter raised by submissions.128 Persons who make submissions on proposed instruments are then entitled to appeal to the Environment Court on provisions or matters referred to in their submissions.129 After hearing such appeals, the Court can direct the local authority to make changes or undertake further consultation.130 A similar process applies to requests for changes of policy statements and plans,131 which may be made by anyone.132
Where an activity would otherwise be in breach of the RMA, people may apply for the necessary resource consents to lawfully undertake it. Types of resource consent include land use consents, water permits, and discharge permits.133 For example, depending on the relevant rules and regulations, a proposed dairy farm might require land use consent for erecting sheds,134 a water permit for irrigation,135 and a discharge permit for effluent runoff.136 The RMA’s default approach to uses of, inter alia, the coastal marine area, beds of
lakes and rivers and water, and discharges of contaminants into the environment is restrictive. Such activities must be expressly allowed by a NES, other regulation, or rule.137 The Act is relatively permissive with respect to land use, which is permitted without a resource consent unless it contravenes a NES or a rule. Resource consent is not required for land use that was lawfully established before a relevant rule became operative or the relevant proposed plan was notified; providing the effects of the use have not significantly changed or been discontinued.138
Applications for resource consents to carry out activities are considered by consent authorities, which are local government bodies with the power to grant the relevant consents.139 Upon receiving an application, a consent authority decides whether to publicly notify it.140 This is a discretionary decision,141 but applications must be publicly notified if, inter alia, the consent authority decides the activities are likely to have “more than minor” effects on the environment, or a rule or NES requires public notification.142 Consent authorities may disregard, inter alia, adverse effects if a NES or rule permits activities with such effects.143 If the activity is classified as controlled or restricted discretionary, they must disregard adverse effects that do “not relate to a matter for which a rule or national environmental standard reserves control or restricts discretion.”144 If not publicly notified, limited notification must be given to any affected person or group.145 If notified, people may make submissions on an application,146 which may support or oppose it.147 These
submissions may raise matters that influence the decision on whether to grant resource consent.
The Minister for the Environment may, either at their own initiative or at an applicant or local authorities’ request,148 “call in” a matter to be referred to a board of inquiry or the Environment Court, rather than the local authority, for decision.149 They have discretion in deciding whether to do this, but may have regard to things like public concern or interest, significant resource use, features of national significance, international obligations, irreversible environmental changes, and the use of new technology and methods.150 They must have regard to “the views of the applicant and the local authority” and the local authority’s capacity “to process the matter.”151 If a matter is referred to a board of inquiry, the Minister for the Environment appoints such a board and may set it administrative terms of reference.152 A board of inquiry will make a decision and provide a report,153 whereas the Environment Court will act as if it is the relevant local authority.154 The costs of making decisions using this process can be recovered from applicants by the relevant authorities.155
Activities may be classed by the Act, regulations, a NES, a plan, or a proposed plan in one of six ways.156 The six classes of activities are permitted (no resource consent required),157 controlled (resource consent required but will be granted, and can have conditions attached),158 discretionary,159 restricted discretionary (the consent authority’s discretion is
150 Section 142(3)(a).
154 Sections 149U(2), 149U(3), 149U(4), 149U(6) and 149U(7).
restricted),160 non-complying (the application must meet threshold criteria),161 and prohibited (resource consent not available).162 Pursuant to s 104(1) of the RMA, consent authorities must, when considering whether to grant resource consent:163
have regard to—
(a) any actual and potential effects on the environment of allowing the activity; and(b) any relevant provisions of—
(i) a national environmental standard:
(ii) other regulations:
(iii) a national policy statement:
(iv) a New Zealand coastal policy statement:
(v) a regional policy statement or proposed regional policy statement:
(vi) a plan or proposed plan; and
(c) any other matter the consent authority considers relevant and reasonably necessary to determine the application.
They must, however, disregard any adverse effects “if a national environmental standard or the plan permits an activity with that effect.”164 In order to better understand the anticipated effects of an activity, consent authorities may use s 92(1) to request further information from the applicant.165 Alternatively, unless the applicant refuses, the consent authority may commission a report on any matter relating to the application under s 92(2).166 These provisions help consent authorities perform the task of weighing various anticipated effects of a proposal, in order to decide whether it should go ahead. Unless limited by a NES, regulations, or plan rules, consent authorities have broad discretion to grant resource consent
on any conditions they consider appropriate.167 Applicants, and any person who submits on a resource consent application, can appeal a resource consent decision to the Environment Court. The conditions attached to a consent, and any review of consent conditions,168 are also amenable to challenge in the Environment Court by the applicant and submitters.169
Promoting sustainability by requiring applicants to show that benefits of activities justify any adverse effects is demonstrative of a precautionary approach to regulating effects on the environment. The precautionary principle is commonly understood with reference to degradation of the natural environment,170 but has been used to manage uncertainty around a wide range of effects on the environment, as it is broadly conceptualised in the RMA.171 Consent authorities, including the Environment Court, require evidence that there is a low probability of an large adverse effects occurring before granting resource consents.172 They are expected to be satisfied by reliable scientific evidence showing an absence of adverse anticipated effects.173 In McIntyre v Christchurch City Council, for example, the precautionary principle was used to manage conflicting expert evidence on the potential human health effects of transmission facility radiation.174 It has been accepted as part of the RMA toolkit for managing effects on the environment, as it promotes the development and use of scientific knowledge so that major or irreversible environmental damage is avoided.
174 At 295.
The broadly proactive planning and consenting approach of the RMA is supported by reactive enforcement provisions.175 Persons who, in the opinion of the Environment Court or an enforcement officer, are considered to have caused, or to be likely to cause, an adverse effect on the environment can be served with an enforcement order or abatement notice, if the adverse effect is not otherwise permitted by the Act, a plan rule, a resource consent or a designation. This can require them to cease or refrain from an activity, or do something to avoid, remedy, or mitigate an adverse effect.176
(d) Consideration of Animal Welfare Under the Resource Management Act
References to animal welfare in policy statements and plans that have been created under the RMA are sporadic and typically oblique. Plans sometimes specify that effects on animals should be included in resource consent applications, but do not make clear whether this includes effects on animal welfare.177 Concern for animal health is often mentioned, invariably alongside human health and sometimes alongside plant health, as a justification for rules that restrict the use of hazardous substances and contaminant discharges.178 The Hawke’s Bay’s Regional Resource Management and Coastal Environment Plans both mention that water takes for the primary purpose of maintaining “human or animal welfare” are allowed from rivers “flowing at or below the minimum flow.”179
Animal welfare is otherwise mentioned rarely in RMA instruments, even in relation to activities where it is particularly pertinent. For example, the Wairarapa Combined District Plan lists “odour, noise, glare and dust” as assessment criteria for intensive farming
175 Resource Management Act 1991, pt 12.
176 Sections 17(3) and 319(2).
applications, but not effects on animals.180 In several district plans, the only standards specifically set for activities involving animal use are set-back distances between buildings and site boundaries.181 Sometimes, plans specifically call for animal interests to be curtailed. The Central Hawke’s Bay District Plan, for example, invites conditions to be imposed “to ensure containment of animals.”182 It is clear that local authorities do not see setting animal welfare standards, or making provisions for the consideration of animal welfare, as part of their role. The Taranaki Regional Council’s Director of Resource Management has explicitly said that “there isn’t really a role for Councils in animal welfare.”183
Mentions of animal welfare in resource consent decisions that have been appealed to the Environment Court are rare. The cases I have found do not include consideration of the interests of animals in relation to the Act’s core purpose of promoting sustainable management, despite animal welfare being relevant to this. In Stark v Waikato District Council, possible effects of noise on animal welfare were considered “as a factual issue under s 104,”184 as a result of the appellants’ being concerned that the relocation of a gun club would affect “successful lambing and kidding of their sheep and goats.”185 This appeal was unsuccessful, but is a lone example of animal welfare science being presented before,186 and
5.1.7.5 and 5.1.7.9, which include ensuring animals cannot escape as assessment criteria for factory farms, animal feedlots, and boarding, breeding and training facilities.
186 At [22]-[35].
considered by,187 the Environment Court.188 In Gray Cuisine v South Waikato District Council, a condition was attached to a resource consent for a greyhound boarding, breeding and training facility requiring any “transportation trailer used for overnight kennelling” to “meet all applicable animal welfare requirements.”189 No other animal welfare issues were addressed, and this condition does no more than restate the existing requirements of the AWA. In Craddock Farms Ltd v Auckland Council, the Environment Court considered the “visual effects, traffic generation and safety, dust generation, potential effects on water supplies, noise, and odour”190 of a proposed large-scale hen farm, and agreed with the Council’s refusal of Craddock Farms’ resource consent application on the basis of “the potential for objectionable odour that would be experienced by the neighbours.”191 They were not, however, concerned with animal welfare issues vociferously raised by protest actions.192 It was accepted that the farm would comply with the Animal Welfare (Layer Hens) Code of Welfare 2012.193 The Court did not assess what compliance with this code would mean in terms of effects of animals.
Some Environment Court decisions relating to enforcement have found that steps taken in the interests of animal welfare can contribute to breaches of the RMA. I have not, however, found any enforcement orders or abatement notices issued under the RMA due to adverse
187 At [46]-[51].
effects on animals. In Northland Regional Council v Flood, the defendant appeared for sentencing for offences relating to effluent run-off from his dairy farm, and contravention of an abatement notice.194 Effluent had escaped into a local river as a result of the defendant allowing poorly-constructed feed pads to be used instead of paddocks, because weather conditions were making feeding cows on paddocks “impossible,”195 causing animal welfare problems. The offending was explained in part, therefore, by a need to ensure the welfare of cows was provided for in terms of access to feed.196 This need was not, however, included as a mitigating factor.
Northland Regional Council v Stanaway & Karl also involved multiple contaminant discharges from a dairy farm and a breach of an abatement notice.197 In his decision on disputed facts, Judge Newhook acknowledged that the need to provide for animal health while using a farm “at the limits of the capability of the effluent system” had contributed to the discharge offences being committed.198 When sentencing Karl, who managed the farm, Judge Newhook referred to his “passion for endeavouring to get things right... in terms of animal health” in finding that he should be discharged without conviction.199 This formed part of a description of the defendant’s character, rather than an analysis of the relevance of animal welfare to how farming is regulated by the RMA. Judge Newhook “found that blame for the state of affairs leading to the charges must rest almost entirely with the Stanaways,”200
195 At [13]-[16].
196 At [16].
198 At [88] and [100].
[20] and [21].
who owned the farm, and made no mention of the contribution of animal health issues to their offending when fining them $67,000.201
By contrast, in Waikato Regional Council v Smith, a further unlawful dairy farm effluent discharge case, the role played by a concern for animal welfare contributed to Judge Harland discharging the defendant without conviction.202 In Waikato Regional Council v Cookson, Judge Harland was sentencing Cookson for an offence of clearing vegetation in contravention of the Waikato Regional Plan.203 Evidence of “a responsible approach to farming” was considered a mitigating factor.204 This evidence included voluntary planting of native vegetation aimed at, inter alia, “improved animal welfare through the provision of shade.”205 These cases demonstrate judicial recognition of some of the ties between sustainable management and animal welfare, but to my knowledge no court has made a decision under the RMA that was expressly directed at avoiding effects on animal welfare.
201 At [52].
205 At [1] and [38(c)(ii)].
2 Proposal: Include Animal Welfare in Resource Management Practice In this chapter, I argue why incorporating animal welfare considerations into resource management decisions is both feasible and desirable. First, I argue that because of the way in which key terms, notably ‘environment’ and ‘effect’, are defined, animal welfare is relevant to decision-making under the RMA. I discuss how my proposal fits into the overall broad judgement approach that has been established for the granting of resource consents, and how incorporating animal welfare considerations would improve the holistic functioning of the RMA. I then set out how consideration of animal welfare would fit into RMA decision- making processes in practice at each stage of the consenting process. I discuss how the RMA’s planning framework could be used to guide and support consideration of animal welfare issues, including by giving effect to standards set out by the AWA, and the codes that exist under it. Finally, I argue that this proposal would overcome flaws inherent in the AWA’s reactive approach, and reduce reliance on it, by allowing for proactive, transparent scrutiny of the welfare implications of animal use.
(a) Animal Welfare is Relevant Under the Resource Management Act
Avoiding, remedying, or mitigating adverse effects of activities on animals forms part of the central purpose of the RMA. That purpose is “to promote the sustainable management of natural and physical resources.”206 “Sustainable management” is defined as:207
managing the use, development, and protection of natural and physical resources in a way, or at a rate, which enables people and communities to provide for their social, economic, and cultural well-being and for their health and safety while—
(a) sustaining the potential of natural and physical resources (excluding minerals) to meet the reasonably foreseeable needs of future generations; and(b) safeguarding the life-supporting capacity of air, water, soil, and ecosystems; and
(c) avoiding, remedying, or mitigating any adverse effects of activities on the environment.
The environment is broadly defined to include:208
(a) ecosystems and their constituent parts, including people and communities; and
(b) all natural and physical resources; and
(c) amenity values; and
(d) the social, economic, aesthetic, and cultural conditions which affect the matters stated in paragraphs (a) to (c) or which are affected by those matters
I interpret this definition as bringing the interests of non-human animals into the remit of the RMA. Animals are unequivocally a constituent part of ecosystems, and “natural and physical resources” are defined as including, inter alia, “all forms of plants and animals (whether native to New Zealand or introduced).”209 I conclude, therefore, that the purpose of the RMA theoretically includes managing the use, development, and protection of animals in a way which enables people and communities to provide for their social, economic and cultural well-being while avoiding, remedying, or mitigating any adverse effects on animals.
“Effect” is also defined very broadly. The term includes:210
(a) any positive or adverse effect; and
(b) any temporary or permanent effect; and
(c) any past, present, or future effect; and
(d) any cumulative effect which arises over time or in combination with other effects—
regardless of the scale, intensity, duration, or frequency of the effect
Activities which include animal use involve a broad range of practices that have impacts which can be considered ‘adverse effects’ on animals.211 For example, dairy farming, which I discuss in more depth in the following chapter, relies on subjecting cows to artificial impregnation,212 separation from family, and slaughter.213 In accordance with how I have interpreted the RMA, such effects are prima facie relevant to the s 17 “[d]uty to avoid, remedy, or mitigate adverse effects” and, because avoiding adverse effects on animals forms part of the RMA’s central purpose, all provisions aimed at giving effect to the Act. These provisions include ss 30(1) and 31(1), which set out the functions of regional and territorial authorities, and ss 63(1) and 72 which set out the purpose of regional and district plans. Crucially, s 104(1)(a) requires consent authorities to “have regard to... any actual and potential effects on the environment” when considering resource consent applications, regardless of what type of resource consent it is for.214
Back Country Helicopters Limited v The Minister of Conservation supports my argument that, even in the absence of direct legislative reference to animal welfare, it can be considered in the course of environmental decision-making. This was a case of the Associate Minister of Conservation granting limited renewed concessions to an aerially-assisted trophy hunting operator.215 In his High Court judgment, Kós J found that the breadth of ss 4(2), 5(1)(g) and 5(1)(h) of the Wild Animal Control Act 1977 (WAC) and s 17X of the Conservation Act 1987 meant that animal welfare concerns were not “irrelevant or improper.”216 The WAC provisions are directed at controlling and eradicating wild animals, and co-ordinating and regulating hunting operations, and gives the Minister of Conservation powers to licence and
216 At [170].
impose conditions on hunting operations. The Conservation Act provision gives them the power to impose conditions on a concession. Neither make any reference to animal welfare.217 Animal welfare fits far more neatly into the RMA’s purpose of managing adverse effects on the environment, which is clearly defined to include animals.
RMA jurisprudence has developed the overall broad judgement approach to governing the use of natural resources. This is intended to ensure holistic environmental decision-making that considers all of the implications of allowing or disallowing an activity. The case of North Shore City Council v Auckland Regional Council used the term “overall broad judgement” to describe the RMA approach of considering applications to use the natural environment, or discharge contaminants into it, by assessing and balancing a range of considerations.218 In Watercare Services Ltd v Minhinnick, the Court of Appeal described this approach as requiring them to “weigh all the relevant competing considerations and ultimately make a value judgment on behalf of the community as a whole”.219 All decision-makers operating under the RMA are expected to make such merits-based assessments, which are capable of going well beyond the matters expressly listed in the purpose and principles part of the Act.220 In Cook Islands Community Centre v Hastings District Council, for example, the Court rejected a resource consent application for a Māori funeral parlour on the basis that it would offend deeply held cultural values of Cook Islanders, thereby adversely affecting their social and cultural well-being. This was despite pt 2 of the Act specifically providing for Māori values that the parlour would have served.221 Other decisions have been influenced by community values as varied as public health, the availability of work, and cricket, despite
them not specifically mentioned in the RMA or relevant planning documents.222 The overall broad judgement approach promotes the deciding of cases on their merits, and the courts have allowed stakeholders to raise values that merit consideration. I note, however, that the Supreme Court majority decision in Environmental Defence Society Inc v New Zealand King Salmon Company Ltd held that, at least in relation to plan changes, documents at the top of the RMA hierarchy can set ‘environmental bottom lines’ that constrain the discretion of decision-making using overall broad judgement.223
There is currently a dearth of consideration of effects on animals in the course of RMA decision-making which represents a significant gap in the overall broad judgement approach.224 This is despite the fact that animal welfare is affected by, and within the purview of, the RMA. This exclusion amounts to a narrowing, in practice, of the RMA’s broad definition of the environment.225 The implication of this approach is that it prevents animal welfare concerns from influencing decisions. It allows harm to animals to go ahead without first scrutinising whether it is justified by the benefits of activities. It also excludes consideration of how physical resource uses interact with animal welfare, and vice versa. For example, agricultural systems that promote expression of natural behaviour have certain impacts the natural environment, for example by increasing nutrient leaching into waterways and air emissions.226 According to the RMA’s holistic ethos, both positive and negative impacts on animal welfare should be considered as a constituent of the environment alongside all the other things, like pollution and cultural impacts, that are considered and weighed in the course of overall broad judgement.
In Kaimanawa Wild Horse Preservation Society Inc v Attorney-General it was affirmed that effects on animals are covered by the RMA,227 albeit only in relation to activities that are otherwise governed by the Act.228 The case related to a management plan that would remove wild horses from identified areas, which the appellant Society argued, inter alia, would compromise “unique genetic traits” and “natural selection processes.”229 This was said to amount to an adverse effect on the environment which contravened the principle of sustainable management and the s 17(1) “duty to avoid, remedy, or mitigate any adverse effect on the environment.”230 The Attorney-General sought dismissal of the applications on grounds that there was “no reasonable or relevant case,” that it related instead to the Wildlife Act 1953, and that wild animal control is not “subject to the provisions of the RMA.”231 The case centred on the question of whether s 17 RMA was capable of applying to culling, mustering, and selling wild horses.232
In the Environment Court, Judge Sheppard identified that “sustainable management” is capable of applying to wild horses as a result of the broad definition of “natural and physical resources.”233 He found that the proposed activity was prima facie covered by the RMA, as it would adversely affect the environment.234 This was consistent with Zdrahal v Wellington City Council, which was an appeal against an abatement notice issued
229 At 71-72.
230 At 69.
231 At 70.
232 At 73.
under the RMA requiring the appellants to remove swastikas that were visible to some neighbours.235 In the course of dismissing the appeal, Greig J stated that:236
In the end there can be no limit to the activities and the things [that] may be done or not done which come within the control and regulation of the Act so long as in the case of offensive or objectionable matters they have an adverse effect or objectionable matters they have an adverse effect on the environment.
Judge Sheppard, however, was concerned that such an interpretation of the RMA could also allow it to restrain activities such as possum control and weed clearing, and even human behaviour.237 He cited Falkner v Gisborne District Council, in which Judge Barker said that “[t]he whole thrust of the regime is the regulation and control of the use of land, sea and air. There is nothing ambiguous or equivocal about this.”238 Judge Sheppard decided against imputing on Parliament an intention to restrain activities beyond “the use of land, sea and air,” or that “were authorised under other legislation.”239 He distinguished Zdrahal on the basis that it was not a case directed at the limits of s 17(1).240 Judge Grieg’s analysis of s 17 was instead undertaken to ascertain the scope of abatement notices that may be issued under s 322 with respect to “offensive or objectionable matters.”241 The scope of s 17(1), however, was held to be impliedly restricted by the wider context of pt 3 of the RMA,242 which only imposes specific duties relating to uses of land,243 the coastal marine area,244 river and lake
Kaimanawa Wild Horse Preservation Society Inc v Attorney-General, above n 228, at 74.
239 At 68, 74 and 80.
240 At 79-80.
beds,245 water,246 discharges,247 noise,248 and emergencies.249 Judge Sheppard held that culling and mustering horses was not a “use of land,” or an activity involving, or ancillary to, the use or occupation of land.250 It was, therefore, held to not be controlled by the RMA, or have adverse effects on the environment that the Environment Court has control over.251 As a result of this finding, the Court did not hear the Society’s substantive application.252
The result in Kaimanawa Wild Horse Preservation Society prima facie counters my assertion that effects on animal welfare can be considered under the RMA. Upon closer inspection of the ratio of Judge Sheppard’s decision, however, it does not appear to preclude consideration of animal welfare with respect to any activity that involves use of land or water, or discharges into air. Judge Sheppard ruled against hearing the Society’s substantive application on the basis that there was no activity of the kind controlled by the RMA involved; the proposed cull involved no conversion, utilisation, working, or occupation of land.253 According to this judgement, the application of the RMA is limited to activities addressed in pt 3. This means that, as it is currently written, pt 3 of the RMA prevents my proposal from applying to activities that do not involve land or water use, or the discharge of contaminants into the environment. An example of such an activity, that would not be affected by my proposal, is the heli-hunting that was at issue in Back Country Helicopters Limited.254 A broad range of animal uses, however, include activities of the kinds governed by pt 3 of the RMA; such as
251 At 69.
252 At 83.
253 At 80-82.
erecting structures,255 disturbing habitats,256 occupying the coastal marine area,257 using water and discharging contaminants into the environment.258 If such an activity involves animal use, its effects on animals can be considered under the RMA, notwithstanding the decision in in Kaimanawa Wild Horse Preservation Society.
There appears to be an understanding amongst RMA practitioners that animal welfare is not a relevant consideration under the RMA. In Kaimanawa Wild Horse Preservation Society, however, Judge Sheppard made no ruling on the respondent’s assertion that the existence of the Wildlife Act 1953 precluded effects on wildlife from being considered under the RMA,259 despite the fact that a management plan had been issued under the Wildlife Act authorising the cull.260 The belief that animal welfare is irrelevant under the RMA has been shared by people working for the Taranaki and Waitaki District Councils, Environment Canterbury (ECan), the Ministry for the Environment and the Ministry for Primary Industries (then MAF).261 References to the AWA in decisions discussed above indicate that the Environment
260 At 78.
<www.odt.co.nz/regions/north-otago/deadline-looms-dairy-plans>; Ministry for the Environment “Resource Consent Applications for Dairy Farming Under-Cover in the MacKenzie Basin” (8 January 2010) 10-B-00003 at [11]; Email from Sarah Gardner (Executive Director of Hazardous Incidents and Environmental Health at the New South Wales Environment Protection Authority) to the author regarding advice given by the Ministry for the Environment to the Hon Dr Nick Smith regarding
Court expects the AWA to fill this gap in RMA decision-making.262 But for some specific provisions,263 however, the AWA does not provide for prospective analysis of the effects of activities. Generally speaking, it sets out a reactive regime that cannot act as a substitute for consideration of effects of animals as part of the RMA’s proactive planning and consenting processes.
It has been suggested that consideration of animal welfare under the RMA is precluded by the very existence of the AWA, a more specific piece of legislation (at least in relation to animal welfare) which was passed eight years later.264 As I will go on to discuss in more detail,265 in the course of considering consent applications for intensive dairy farming operations in the Mackenzie Basin, the Ministry for the Environment agreed with legal advice received by ECan that “animal welfare concerns... are for the Animal Welfare Act 1999 rather than the Resource Management Act 1991.”266 This may be the result of misunderstandings of the breadth of the RMA’s definition of “environment,”267 or the doctrine of implied repeal pro tanto being misconstrued. Not only is this reasoning contradicted by examples of animal welfare cropping up (albeit sporadically) in the course
Mackenzie Basin dairy farming resource consent applications (24 August 2017); Interview with Andrea Speir, Manager of Legislation, Standards and International Team in the Ministry for Primary Industries Legal Team (the author, Wellington, 31 August 2017); Nick Smith “Minister calls in Mackenzie Basin dairy discharge consents” (27 Jaunary 2010) beehive.govt.nz
<www.beehive.govt.nz/release/minister-calls-mackenzie-basin-dairy-discharge-consents>.
of RMA decision-making,268 if it is an application of the doctrine of implied repeal it is legally incorrect.
As set out by Lord Langdale in Dean of Ely v Bliss:269
If two inconsistent Acts be passed at different times, the last must be obeyed, and if obedience cannot be observed without derogating from the first, it is the first which must give way.
This is the doctrine of implied repeal.270 It means that, if consideration of animal welfare under the RMA was inconsistent with the AWA, the enactment of the AWA in 1999 would have impliedly repealed, pro tanto, functions of the RMA with respect to animal welfare. “Pro tanto” implied repeal applies where a later, specific Act (such as the AWA) carves out an exception to an earlier, general one (like the RMA).271 As stated by Chambers J in Chief Executive of Land Information New Zealand v Luke, “[t]here is a general maxim of interpretation requiring general statutory provisions... to yield to specific ones.”272 This seems to have been the thinking of practitioners who have considered whether animal welfare can be considered under the RMA.
The assumption that the AWA precludes consideration of animal welfare under the RMA, however, ignores the fundamentally different approaches of the two statutes. The courts strive to reconcile statutes and avoid implied repeal, and this is not difficult in this case.273 The function I am arguing that the RMA should perform is prospective consideration of the
271 At 478.
effects of activities on animals, whereas the AWA performs a reactive role by responding to animal welfare issues when they arise. The RMA can be used to scrutinise animal welfare implications of proposed activities without limiting the ability of the AWA to enforce animal welfare standards. This is analogous to the case of Reay v Minister of Conservation, in which the Court of Appeal held that, in the absence of an express exclusion, the existence of the Fisheries Act 1996 did not preclude commercial fishing from falling within the purview of the Conservation Act 1987.274 It was acknowledged that the two statutes performed different roles;275 the Fisheries Act 1996 operates permissively (similarly to the AWA) while providing for fisheries sustainability, while the Conservation Act 1987 is cautious and restrictive, ala the RMA.276
Implied repeal may, however, prevent my proposal from operating with respect to animal export and RTT, as the AWA does provide for prospective licensing of these practices. It could be argued that Parliament would not intend for these activities to pass through the resource consent process in addition to the bespoke approval processes set out in the AWA. Legislative reform would, therefore, be required to move the licensing of these activities to the purview of the RMA. For similar reasons, it could be said that the duties imposed on people in charge of animals by the AWA, and their enforcement by inspectors, supersede the RMA duty “to avoid, remedy, or mitigate any adverse effect on the environment” and its enforcement.277 Broadly speaking, however, the functions of the RMA and the AWA can be reconciled, and even support each other.278 Given that implied repeal is a last resort doctrine that is not needed in this instance,279 the existence of the AWA does not rule out my proposal.
276 At [19] and [23].
(b) How Regard to Animal Welfare Should Inform Resource Consent Decisions Effects on animal welfare should be considered by consent authorities when making their first decision regarding an application for resource consent; whether to publicly notify it.280 Regard for of animal welfare is only precluded from this process where it is not a matter for consideration with respect to a controlled or restricted discretionary activity.281 Consent authorities also have discretion to disregard effects on animals that occur in the course of any activities permitted by an NES or relevant rule.282 This would allow them, for example, to disregard the effects of any permitted forms of animal agriculture. Otherwise, however, pursuant to the broad definitions of “effect” and “environment” discussed above,283 consent authorities cannot reliably decide whether or not an “activity will have or is likely to have adverse effects on the environment that are more than minor” without having regard to the degree of likely adverse effects on animals.284 If they were to consider such effects, they would be more likely to publicly notify resource consent applications for activities involving animal use. In the event of public notification, animal welfare matters may be raised by submissions. Any person may make a submission on a publicly notified application,285 as can people served with notice with respect to limited-notification applications.286
Similarly, effects on animals should be considered by consent authorities when making the substantive decision on whether to grant consent. The requirement that consent authorities “have regard to... any actual and potential effects on the environment of allowing the activity” means that both positive and negative implications for animal welfare should be examined.287 They should, therefore, be considering the adverse effects of things such as
confinement, physical stress, and the separation of family members, as well as welfare gains for animals brought about things like safety, healthcare, and social interaction. When considering restricted discretionary activities, however, animal welfare may only be considered if it is a matter that a NES, regulations, or plan rules allow the consent authority have regard to.288 As consent authorities may decline resource consent on the basis they have inadequate information to make a determination,289 applicants may be required to discuss animal welfare in their resource consent applications. If a consent authority decided it should have regard to animal welfare, unless this was addressed by the applicant they would likely use s 92 to request or commission the provision of further information.290
Such consideration of animal welfare should form part of the overall broad judgement approach to ensure that the linkages between animal welfare and use of the natural environment are recognised and considered.291 Agricultural practices in particular often bring the aims of allowing animals to express innate behaviour, reducing pollution and maximising production quantities into conflict.292 For example, providing animals with more space increases surface area per excretion mass, which increases rates of methane and ammonia emissions. Allowing pasture grazing also increases methane production due to increased dietary fibre, compared to grain feeding.293 Steps can also sometimes be taken which are conducive to simultaneously improving welfare and environmental outcomes. For example, cattle have been found to prefer drinking from water troughs, so providing troughs aligns with their desires while reducing effluent runoff into waterways.294 While pasture grazing increases methane emissions, it also reduces ammonia emissions by allowing for urine to be
quickly absorbed by soil.295 These are just some examples of the complex competing factors at play that should be considered holistically when deciding whether an activity involving animals should proceed.
The classification of proposed activities will determine what impact any regard for animal welfare will have. If an application is for resource consent for a controlled activity, the consent will be granted regardless, but the consent authority may impose conditions for matters “over which control is reserved in national environmental standards or other regulations,”296 or in the consent authority’s plan or proposed plan.297 After considering likely effects including, where relevant, effects on animals, consent authorities have discretion to grant or refuse resource consent for discretionary and restricted discretionary activities.298 Consent authorities are only able to grant resource consent for non-complying activities if they are satisfied adverse effects, including on animals, will be minor,299 or that the activity is not contrary to relevant objectives and policies.300 Consent authorities are able to attached conditions to consents that could, inter alia, require monitoring of animal welfare and adherence to certain standards.301 In the case of consents that have already been granted, consent authorities are entitled to review their conditions in order to deal with adverse effects on animals.302 This follows a similar process to the consideration of a resource consent application at first instance.303 Such reviews could improve animal welfare through changes in conditions,304 or lead to consents being cancelled on the grounds of having “significant
adverse effects” on animals.305 The applicant, and people who have submitted on a resource consent application, can appeal decisions on resource consents and reviews of consent conditions to the Environment Court on the grounds that insufficient regard was had to effects on animal welfare.306
Pursuant to the ratio of Kaimanawa Wild Horse Preservation Society, my proposal would only apply to activities which involve “the use of land, sea and air.” 307 Animal use that does not involve use of land or water, or any contaminant discharges (a commercial hunting operation, for example), is not covered by the RMA and would, therefore, not be covered by my proposal.308 It would also not apply to situations where activities do not otherwise require consent because they are classed as permitted activities by the “Act, regulations (including any national environmental standard), a plan, or a proposed plan.”309 In order for all animal use to fall under the RMA, pt 3 would need to be amended to include a section that imposes restrictions on the use of animals, with a corresponding form of ‘animal use consent’ introduced as a type of resource consent under s 87.
(c) Accommodating Animal Welfare in the Resource Management Act Framework The consideration of animal welfare in the course of the resource consent process could be supported by provisions in instruments that exist in the RMA framework. NES’s, regional policy statements and plans, and district plans, are able to provide consent authorities and the Environment Court with guidance on assessing animal uses and their effects. The very purpose of these documents is to aid achieving the purpose of the Act,310 which I interpret as
305 Section 132(3)(c).
310 Sections 59, 61(1)(b), 63(1), 66(1)(b), 72 and 74(1)(b).
including avoiding, remedying, or mitigating any adverse effects on animals.311 This could be done by setting uniform standards across Aotearoa via NES’s and other national-level regulations.312 Regional policy statements, regional plans and district plans set policies and rules to be adhered to at the smaller regional or district levels.313 Such documents could, inter alia, specify certain animal-use activities as permitted,314 controlled,315 restricted discretionary,316 discretionary,317 non-complying,318 or prohibited,319 require animal-users to obtain certificates of compliance with animal welfare standards,320 require reviews of existing consents that allow animal use,321 and require consent authorities to give public notification for animal use consent applications.322 They could also set out animal welfare objectives and policies,323 and particular animal welfare matters to be controlled by consent authorities.324 Expanding the scope of RMA instruments in this way could proactively instigate or prevent consideration of animal welfare during the resource consent process, such as by making animal welfare a mandatory or a prohibited consideration. It could also direct or constrain such consideration, as a response to it beginning to occur in practice in the absence of national- or local-level guidance.
A ‘National Environmental Standard for Animal Welfare’ could be created to set nationally consistent minimum standards for the use of land and water, and the discharge of
315 Sections 43A(6)(a)(i) and 77A(2)(b).
contaminants, with respect to effects on animals.325 This would involve the Minister for the Environment following the process set out in s 46A RMA which requires, inter alia, offering the public “adequate time and opportunity” to make submissions.326 It would have the effect of requiring consent authorities to have regard to relevant animal welfare standards when considering resource consent applications.327 Presently, NES’s exist for issues such as air quality,328 telecommunication facilities,329 and soil contamination.330 They are rather similar to the codes which, under the AWA, set nationally consistent standards for particular animals and animal uses, such as dairy cattle,331 layer hens,332 and rodeo.333 One option for forming, at least in part, a National Environmental Standard for Animal Welfare would be incorporate codes by reference into a NES,334 thereby drawing the attention of consent authorities to applicable minimum standards and best practice when deciding whether to grant resource consent to activities involving animal use.
Other possible starting points are the AWA’s “care of animals” obligations and prohibitions on misconduct toward animals.335 For example, the Five Freedoms could be used as assessment criteria for applications,336 or consent authorities could be required to assess the
likelihood of ill-treatment of animals occurring.337 If animal welfare standards were set in the form of a NES, the operation of the RMA hierarchy of planning documents prescribes that any more specific standards set at regional or district level would have to be consistent with them.338 In light of the majority decision of the Supreme Court in Environmental Defence Society Inc v New Zealand King Salmon Company Ltd, it seems an apex document in the RMA hierarchy, such as an NES, could be used to set animal welfare “bottom line[s].”339 These would be resolutely worded provisions that prevent overall broad judgement from being used to allow activities that fall below certain welfare standards.
Alternatively, or in addition to national-level guidance, regional or district level documents could set out policies and rules that would aid consent authorities looking to have regard to animal welfare. Regional policy statements and documents could aid consideration of animal welfare in cases where activities involve the use of water, the coastal marine area, or contaminant discharges,340 while district plans could manage the welfare implications of different forms of land use.341 Like NES’s, plans can incorporate documents such as codes by reference,342 and could use AWA concepts to set assessment criteria. Local authorities could also set bespoke animal welfare rules in order to meet particular regional or territorial objectives. A council could, for example, make a rule requiring all applications for resource consent that involve animal use be publicly notified,343 so as to maximise opportunities for public discussion of welfare concerns. Communities are able to argue that animal welfare, and particular animal welfare objectives, policies, and standards, should be incorporated into local RMA instruments by making submissions on proposed documents and being heard at
hearings.344 They can also request changes to plans to reflect animal welfare concerns.345 Local authorities would have to decide on such matters, and give reasons for their decisions,346 and the submitters would be entitled to appeal the decisions on animal welfare matters to the Environment Court.347
(d) Use of the Resource Management Act Would Improve Animal Welfare
I believe that expanding the scope of the RMA’s proactive approach to managing resource use would improve animal welfare in Aotearoa by augmenting the AWA’s predominantly reactive approach. Where resource consent applicants are proposing activities that would involve animal use, my proposal would require them to justify any adverse effects on animal welfare. This process would amount to more than a box-checking exercise; it would allow for increased, ongoing, and iterative scrutiny of animal use on a case-by-case basis as animal welfare science and social attitudes toward animal use, and the harms involved, evolve. It would also ensure that applicants are aware of their animal welfare obligations.348 Each time an application came before a consent authority or the Environment Court would be a fresh opportunity for consideration of what is considered acceptable in terms of animal use. This would allow evaluation of individual, specific animal welfare issues and the public’s interest in them as they arise and in light of the most up-to-date relevant scientific information. This change in practice would, with respect to how animal welfare is considered in New Zealand’s legal system, follow the approach set by RMA for proactively managing effects on the rest of the environment.349 Promoting animal welfare in this way is not without precedent;
practices like live animal export and RTT are already managed using proactive licensing systems under the AWA.350
This proposed change would enable public input and transparent discussion around what forms of animal use are considered acceptable in Aotearoa. Humans react to harm caused to animals, as they do to damage caused to other aspects of the environment.351 It matters to people, as well as animals, how animals are treated, and we tend to believe we have a responsibility to ensure the needs of animals in human care are met.352 People’s subjective connections to the environment extend to valuing good animal welfare, regardless of whether they are involved in the use of the animals.353 The overall broad judgement approach to resource consenting has developed to give weight to such community values.354 Furthermore, animal welfare scientists are constantly developing knowledge around how best to promote animal well-being. Currently, such experts and the public are only given opportunities input into how animal welfare is promoted in Aotearoa when a draft code of welfare is notified for public consultation by NAWAC,355 or the Minister is undertaking consultation ahead of creating regulations under the AWA.356 However, opportunities for such consultation are sporadic, and in the case of regulations the Minister is not required to consult the public, and
(May 2013) at 4.
353 At 685, 691, 694-696 and 699-700; and Loveridge, above n 2, at 93-94.
MPI expects people who want to make submissions to be signed up to a NAWAC email alert list.357 By contrast, a central tenet of the RMA is allowing public input into a range of ongoing planning and consenting decisions.358
The RMA envisages people being able to express their values and have them borne in mind by decision-makers, both when policy statements and plans are being prepared or changed, and when resource consent applications for activities involving animal use are being considered. Decision-makers should be considering the value of good animal welfare in cases where this is something that the public is concerned about. My proposal would involve a paradigm shift from such consideration only occurring when high-level AWA policy documents, like codes, are open for consultation, to a situation where the public can have input into individual decisions that are going to affect animals. It is true “that most of us live in a willed blindness towards the issue of animal suffering.”359 Ignorance, uncertainty and denial around the true welfare implications of animal use prevent society from confronting it and addressing welfare shortcomings.360 Animals that are more visible in society are typically afforded greater legal protection.361 It is MPI’s “position that “practices that are generally accepted should be allowed to take place.”362 I think this is a callous point of view. Being unwilling to undertake proactive, critical assessment of animal use contributes to inertia that slows animal welfare improvements. My proposal would allow those who are aware of potential suffering to bring it to the attention of decision-makers so it does not occur without first being justified.
This proposal would reduce the pressure on the AWA’s monitoring and enforcement regime. As I have discussed, the shear amount of animal use, and the unexposed nature of many harms to animals, makes the task of enforcing the AWA very difficult.363 Animal welfare issues are far less detectable than, for example, unauthorised land or water use, or contaminant discharges. Reliance on the AWA to ensure good animal welfare strikes of dependence on an ambulance at the bottom of a cliff.364 The flaws in this approach could be addressed, in part, by increasing numbers of AWA inspectors and the support available to them. My proposal, however, would reduce the pressure on the AWA’s enforcement regime by being the equivalent of putting a fence at the top of the cliff. MPI have themselves recognised that “[m]any animal welfare problems can be avoided with better planning.”365 Including consideration of animal welfare in RMA processes would prevent activities from going ahead where an applicant cannot show they will ensure adequate animal welfare, or that effects on animals are not expected to have commensurate benefits. It would promote, as MPI have called for, planning to prevent identified risks to animal welfare, and designing facilities that meet animals’ core needs.366 While this proposal would only affect activities that pass through the resource consent process, rather than all animal use,367 it would reduce occurrences of activities which might have adverse, and irreversible, “unreasonable or unnecessary” effects on animal welfare. This would in turn reduce dependence on punishing AWA offenders after the fact.368
These improvements to animal welfare law in Aotearoa would make efficient use of the existing RMA framework. As I have discussed, this framework operates holistically; with
the Act, regulations, policy and planning documents, and practitioners working with local authorities and the Environment Court, combining to manage resource use.369 My proposal is to improve animal welfare by inserting animal welfare considerations into this structure, thereby making use of existing institutions and processes. It essentially amounts to a small expansion of the existing overall broad judgement approach, so as to increase the attention paid to applications that pass through the resource consent process. Animal welfare gains could be achieved with minimal additional time, cost, and effort from people working in the fields of animal and resource management law. MPI has identified that the government could be using “regulatory and other interventions to ensure [animal welfare standards] are met.”370 I think the resource consent process is an ideal candidate. Considering the animal welfare implications of activities that go through the resource consent process would not only be legally correct and beneficial, it is practicable.
3 Case Study: Intensive Dairy Farming in the Mackenzie Basin
In this final chapter, I test my proposal using an example of a contentious plan that raised significant animal welfare concerns when it entered the resource consent process. Firstly, I provide some background information and describe the unsuccessful resource consent process the applicants went through. I explain how the consent authorities involved could have considered animal welfare, and the implications this might have had. I then discuss how such consideration could have been aided by the existence of animal welfare standards set out in a NES or the relevant plans. Finally, I argue that following my proposal would have ensured better decision-making in this case by weighing all of the significant issues at play, and being proactive to avoid a potential animal welfare disaster.
(a) The Proposed Farms and Resource Consent Application Process
In 2009, plans were announced by Williamson Holdings Ltd, Southdown Holdings, and Five Rivers Limited to establish 16 new dairy farms in the Omarama and Ohau areas of the Mackenzie Basin, in New Zealand’s South Island. These farms would use under-cover ‘cubicle’ stalls to house up to 17,850 cows.371 The cows would be confined to these cubicles for 24 hours a day for eight months of the year between March and October, and 12 hours a day between November and February.372 While this method of dairy farming was expected to better manage emissions of pollutants into air, land and water, and potentially utilise methane to generate power for farming and the grid,373 it raises significant animal welfare
issues, such as increased rates of disease and the trauma of confinement.374 One of the companies’ directors, however, publicly claimed that the cows would be sufficiently free and comfortable.375 Land use consent applications were submitted to ECan for building, and using, effluent storage ponds and the cubicle stables. ECan also received discharge permit applications relating to depositing solid and diluted effluent onto land, and contaminants from the ponds into the air.376
Analysis of submissions received in relation to the resource consent applications suggests that around 75 per cent of them raised welfare concerns.377 As mentioned above, the relevant consent authority, ECan, received advice that effects on animal welfare could not be considered because “issues in terms of animal welfare are more appropriately addressed via the Animal Welfare Act.”378 This was despite the same legal advice stating that effects on New Zealand’s international reputation; a factor not present in the RMA, might fit the Act’s scope. Furthermore, this advice stated that welfare concerns were irrelevant because “the application is for a discharge permit,”379 and only effects that relate to the activity for which consent is sought need to be considered.380 In actual fact, nine of the 15 applications at issue
<www.nzherald.co.nz/nz/news/article.cfm?c_id=1&objectid=10614363&ref=rss>.
were for land use consent,381 and s 104(1)(a) of the RMA requires broad regard to “any actual and potential effects... of allowing the activity,” contrary to ECan’s limited interpretation.382
In advising the Minister for the Environment on ‘calling-in’ the applications for national- level consideration, government officials concurred with the advice that welfare concerns should be left to the AWA,383 and concluded that both “animal welfare and of New Zealand’s farming image... sit outside the powers of the [RMA].”384 On 27 January 2010, the Minister for the Environment, the Hon Dr Nick Smith MP, called in the resource consent applications lodged with ECan on the grounds that they were nationally significant; due to their scale, the fragile and iconic nature of the Mackenzie Basin environment, the importance of freshwater quality to the Government, and the high level of public interest." Despite making up a substantial portion of the public interest, animal welfare concerns were not mentioned as a factor, and Dr Smith reiterated that “animal welfare issues fall outside the jurisdiction of the RMA.”385
Land use consents for earthworks and intensive farming were granted by Waitaki District Council (WDC), without public notification, a few months prior to the applications for 15 other consents being called in. The Council had not considered effects on animal welfare in concluding that the effects were not more than minor. They too believed that the existence of the AWA precluded them from considering animal welfare issues.386 One aspect of the application that supported the granting of the resource consents was the fact that the proposed facilities would not be visible from State Highway 8. Furthermore, a condition was attached
requiring landscaping to further obscure views of the dairying sheds.387 These are precisely the sorts of things that contribute to the difficulties inherent in enforcing the AWA, and in this case helped the applicants obtain resource consent.388
The land use consents granted by WDC were overturned following a challenge by the Environmental Defence Society in the High Court. This resulted from a discovery during court proceedings that a Council officer had acted without proper authority in the course of the decision-making. The challenge had originally alleged errors of law in the decisions themselves, including deciding against public notification.389 Applications for these consents were refiled in October 2010, but put on hold pending decisions from ECan on the associated water permits. The companies withdrew from the board of inquiry process for the consents specific to the ‘cubicle’ elements of the proposal, apparently because of the "extraordinary cost of the call-in process.”390
(b) How Regard to Animal Welfare Might Have Affected the Decisions Made
In this case, there were several stages at which consideration of animal welfare might have led to different decisions being made. Firstly, the WDC decided against publicly notifying the consent applications for earthworks and intensive farming. This means that they decided that the activities were not “likely to have adverse effects on the environment that are more
<www.odt.co.nz/regions/north-otago/change-plan-dairy-farms>; and David Bruce “New bids for indoor dairying” (29 October 2010) Otago Daily Times <www.odt.co.nz/regions/north-otago/new- bids-indoor-dairying>.
than minor.”391 It is clear that animal welfare was not considered by the WDC neither in the course of this decision, nor when it applied s 104 in making the subsequent decision to grant the consents.392 Perhaps if animal welfare had been considered, the decision would have been publicly notified, leading to submissions that might have encouraged the WDC to decline, rather than grant, the land use consents. ECan also decided they would consider the applications lodged with them without regard to animal welfare, which was then excluded as a factor behind the Ministerial call in. Issues covered in evidence submitted to ECan,393 and matters on which ECan requested further information,394 were things like land disturbance, water allocation, discharges of effluent, nutrients, and odour, and noise effects; but not animal welfare. Pursuant to my argument, however, if either ECan or the board of inquiry had gone ahead with considering the applications they could, and should, have paid attention to the animal welfare concerns raised by thousands of public submissions.395 As I discuss in the following section, animal welfare issues could have been addressed by planning documents under the RMA, thereby providing the consent authorities with guidance on how to incorporate effects on animals into any resource consent decisions made.396
If the WDC, ECan, the Board of Inquiry or the Environment Court had considered animal welfare to be relevant, there are a range of things to which they could have had regard. These include the decreased ratio of human employees to cows on more densely populated farms that results in less individualised attention to the welfare of animals, as their health is
addressed at a herd level.397 Compared to conventional New Zealand dairy farming, in such a scenario there is a greater chance of the obligation to alleviate ill or injured cows’ pain or distress not being met, leading to adverse effects on their welfare.398 As grazing animals, cows are unable to express normal behaviour if housed inside,399 and housing of cows appears to increase aggression.400 Being kept in sheds in an area where temperatures can exceed 35°C is clearly risky,401 and lack of sunlight and high concentrations of ammonia and pathogens are particular concerns.402 Such farming practices increase rates of conditions like mastitis, hock lesions, and lameness,403 and decrease the average lifespan of cows from around 15 to six years.404 There is also concern that, by holding animals in industrial rather than natural or semi-natural settings, and reducing opportunities for them to express innate behaviour, they are perceived as less morally relevant, leading to those with control over them doing less to promote their welfare.405 In sum, there are a broad range of adverse effects on animals that could, in tandem with other adverse effects, have led to consent being declined. As mentioned above,406 in granting resource consents the WDC viewed the fact that facilities would not be visible from the road favourably, and imposed a condition requiring the dairying sheds to be further obstructed from public view with landscaping.407 Had animal welfare been a
400 At 266.
consideration, perhaps the WDC would have taken an opposing view, and attached conditions to aid, rather than hinder, oversight of how cows are being treated.408
There is also evidence that this practice may have some animal welfare benefits, relative to other methods of dairy farming. These include the avoiding or mitigation of muddy pasture trails, certain diseases, and hoof and leg injuries through the use of a more controlled environment.409 It is a farming system that increases consistency in terms of things like temperature and food supply, and reduces exposure to adverse weather and gastrointestinal parasites.410 Animal welfare is a multi-faceted concept; animal use practices affect various aspects of it differently.411 It is important to bear in mind that the RMA requires consideration of positive effects,412 so inclusion of regard for animal welfare in the overall broad approach would include considering how a proposal might improve, as well as diminish, animal welfare outcomes. Using the RMA to promote better treatment of animals, as well as avoiding adverse effects on them, would address some of the AWA’s shortcomings. It would help achieve the aim of ensuring the welfare of animals is properly attended to.413
(c) Animal Welfare Standards Could Have Provided Guidance
The lack of reference to animal welfare in district and regional plans means that there was little guidance immediately available to the consent authorities on how to consider animal welfare.414 Assessments of the proposals against relevant planning documents had no reason to reference animal welfare.415 The WDC, ECan, the Board of Inquiry and the Environment Court would have been much more able to have regard to animal welfare had existing
415 Kyle, above n 393, at [1.5] and [3.2].
documents in the RMA framework provided some assistance. The Canterbury Land and Water Regional Plan makes no reference to animal welfare, with the exception of provisions made for ensuring sufficient quantity and quality of animal drinking water.416 The Waitaki District Plan provides for consideration of “odour, noise, outlook or nuisance” effects of farming,417 “methods used to ensure containment of animals” and “[t]he difficulty of eliminating escaped animals,” but not animal welfare.418 While the lack of reference does not preclude consent authorities from having due regard to effects on animals, including relevant animal standards in the RMA framework would aid such consideration.419
It was acknowledged by the Prime Minister of the time, the Rt Hon John Key, that there was a need to consider setting specific animal welfare standards for indoor dairy farming.420 His government, and the multi-national dairy co-operative Fonterra, were concerned that allowing “factory farming” would negatively impact New Zealand’s “brand.”421 The first Dairy Cattle Code of Welfare (the Code) issued under the AWA was in a draft stage at the time these plans came to light, and was published just over three weeks after the applications lodged with ECan were called in for national-level consideration.422 Prior to it being finalised, the then Minister of Agriculture (the role now entitled Minister for Primary Industries) the Rt Hon David Carter asked NAWAC to urgently review the welfare issues involved in this sort of dairying.423 When published, the Code included a section on “Housing Cows and
416 Canterbury Land and Water Regional Plan 2017, s 5.36.
417 Waitaki District Plan 2010, s 18.1(ix)(i).
418 Sections 18.1(xxvii)(b) and (c).
420 (8 December 2009) 659 NZPD 8292.
Calves” that has been retained in its two subsequent versions.424 This section sets standards that could, if incorporated into the RMA framework, guide consent authorities considering the animal welfare implications of allowing intensive indoor dairy farming.425
The Code notes that “[t]here is an increasing interest in the housing of dairy cattle” and that “[i]n these situations animals are totally dependent on stockpeople.”426 It calls for dairy cattle housing to provide “dry, well ventilated and draught free” accommodation that allows each cow to lie down for eight hours per day.427 It recommends, as best practice, providing dry and comfortable bedding, not allowing soiled bedding to accumulate to a point that is poses a threat to welfare, ensuring circulation keeps “dust levels, temperature, relative humidity and gas concentrations” within safe limits, and providing lighting sufficient to enable animal inspection without being “so intense as to cause discomfort.”428 It also sets “Minimum Standard No. 9,” which requires:429
(a) Dairy cattle must be able to lie down and rest comfortably for sufficient periods each day to meet their behavioural needs.
(b) All fittings and internal surfaces, including entry races and adjoining yards that may be used by the housed animals, must be constructed and maintained to ensure there are no hazards likely to cause injury to the animals.
(c) Ventilation must be sufficient to prevent a build-up of harmful concentrations of gases such as ammonia and carbon dioxide.
(d) If ammonia levels of 25 ppm or more are detected within the housing, immediate action must be taken to reduce the ammonia levels.
(e) All sharp objects, protrusions and edges, including damaged flooring likely to cause injury to dairy cattle, must be removed, repaired or covered.
It is worth noting that the recommended best practice set out in codes have no legal effect under the AWA, and the minimum standards are not directly enforceable. Non-compliance with a minimum standard is merely evidence of an AWA breach,430 while compliance provides a defence to certain AWA offences.431 Things like dry bedding, circulation that ensures safe dust and temperature levels, and comfortable lighting, are, under this code, only recommendations. They could, however, provide a consent authority with helpful guidance when deciding whether to grant consent for indoor dairying. The consent authority could satisfy itself that the cows would be sufficiently safe and comfortable according to these criteria in the course of granting consent. Alternatively, they might find that the proposal would have majorly adverse effects on cows in terms of exposure to damp, cramped, hazardous, gaseous, unclean or bright conditions, and decline the consent on those grounds.
RMA instruments could have directed the consent authorities to consider the relevant standards in the Code or, as an alternative, called on them to have regard to the Five Freedoms.432 This would have ensured they at least went through how the proposal would provide cattle with their “physical, health, and behavioural needs” in terms of food and water, shelter, opportunity to display normal behaviours, pain- and distress-free handling, and protection from injury and disease.433 They could similarly have been advised to assess the applicant’s ability to ensure animals are not ill-treated,434 so as to proactively reduce pressure on pt 2 of the AWA. The AWA provides a starting point for imagining what animal welfare factors the WDC, ECan, and the board of inquiry could have considered, but in the future
such criteria could be set out in policy statements and plans developed with input from the Waitaki and Canterbury communities to reflect local values and objectives.435
(d) Considering Animal Welfare Would Have Ensured Better Decision-Making
The indoor farming of dairy cows has been recognised as a practice which raises complex environmental and animal welfare issues.436 If it is to occur in Aotearoa, it is a practice that should, at the very least, attract in-depth scrutiny in terms of all of its effects on the environment.437 The RMA exists to “mediate when private or commercial interests collide with the public and environmental interest.”438 Indeed, the scale of public interest and the expected effects of this activity were the very reasons given for the applications being called in for national-level consideration.439 Failure to consider a major focus of that public interest; animal welfare,440 is particularly troubling given that this method of dairy farming is novel to Aotearoa.441 It is not something that has garnered environmental, ethical, or social acceptance in this jurisdiction, and as noted by the government has the potential to tarnish New Zealand’s reputation.442 Along with regard for things like water quantity and quality, the landscape, and the economy, serious consideration of effects on the animals ought to occur. This requires detailed scrutiny of the welfare implications of how the cows will be used. Issues such as the proposed herd density and facilities and care available should be assessed in a precautionary, evidence-based manner.443 The RMA is supposed to operate
holistically,444 but in cases such as this one an absence of regard for animal welfare considerations prevents RMA decision-making from truly occurring in the round.
The reduction of this decision to consideration of economic benefits and pollution ignores a significant elephant in the room; the wellbeing of tens of thousands of cows.445 This is precisely the kind of situation where prospective consideration of animal welfare issues could avoid reliance on the enforcement arm of the AWA down the line.446 Animals’ interests could, and should, be considered alongside things like, for example, the prospects of some methane emissions being harnessed as a power source or fertiliser.447 The Code says that “dairy cattle housing needs to be” designed and constructed “with the well-being of the animals in mind.”448 Meeting this “need” is not, however, obligatory under the AWA. It is, along with a long list of recommended practices found throughout the codes, recognised as a thing that is good for animal welfare, but the law currently does nothing proactive to promote it. However, at the design stage, prior to construction, the RMA does have control over proposals for things like intensive dairy farms.449 Consent authorities determine what evidence has to be produced to prove a proposal’s acceptability,450 and how standards are to be met, such as by imposing conditions.451 This control could be used to improve animal welfare outcomes across a range of activities that involve animal use and pass through the resource consent process. It is an Act that could be used to ensure that new farming operations are established with appropriate regard to animal welfare. This would fill a gap in New Zealand’s animal welfare law; the lack of proactive measures to reduce harm to animals.452 In this case, it would manage the risk of such a novel operation generating unanticipated
welfare problems that would then have to be addressed, after animals had been harmed, by MPI.453 To say that dairy farms should be developed with regard to promoting animal welfare is an uncontroversial proposition. The RMA is capable of giving effect to it.
Conclusion
Reliance on the Animal Welfare Act 1999 for the promotion of animal welfare in Aotearoa is inherently limited by its modus operandi. The AWA is broadly permissive with respect to animal use, and reliant on reactive enforcement measures kicking in when animals that are suffering ill-treatment or a lack of care are detected by inspectors. These inspectors are hamstrung trying to carry out this role by restrictive budgets and the hidden nature of many of modern society’s uses of animals. The Resource Management Act 1991 offers a solution to this problem. It sets out a cautious, proactive regime, that hitherto has rarely considered animal welfare, but is in fact perfectly capable of doing so.
Widening the overall broad judgement approach, in accordance with the Act’s broad definitions of environment and effect, could provide animals with a valuable first line of defence against the impacts of human activity. The RMA provides a readymade framework of instruments, institutions and practitioners that can be expanded slightly to provide for having regard to effects on animals. This is legal and practicable, and would produce opportunities for transparent discussion about the acceptability of different animal uses, leading to improved animal welfare outcomes, and reducing reliance on AWA enforcement. The legal state of affairs that I have set out, and the social desire to see proposals such as indoor dairy farming considered with regard to animal welfare, lead me to believe that my proposal is ready to be put into effect.
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Anita Killeen “Animal Welfare Sentencing” [2013] NZLJ 125.
Bret Birdsong "Adjudicating Sustainability: New Zealand's Environment Court and the Resource Management Act" (2002) 29(1) Ecology Law Quarterly 1.
Ceri Warnock “Reconceptualising the Role of the New Zealand Environment Court” (2014) 26 Journal of Environmental Law 507.
Danielle Duffield “The Enforcement of Animal Welfare Offences and the Viability of an Infringement Regime as a Strategy for Reform” (2013) 25 New Zealand Universities Law Review 897.
David Favre “Living Property: A New Status for Animals Within the Legal System” (2010) 93 Marquette Law Review 1021.
Gary L Francione “Animals as Property" (1996) 2 Animal Law 1.
Inga Carlman “The Resource Management Act Through External Eyes” (2007) 11 New Zealand Journal of Environmental Law 181.
Jerrold Tannenbaum “Animals and the Law: Property, Cruelty, Rights” (1995) 62 Social Research 539.
Katherine Baker “Consorting with Forests: Rethinking Our Relationship to Natural Resources and How We Should Value Their Loss” (1995) 22 Ecology L Q 677.
Laura Fraser “Property Rights in Environmental Management: The Nature of Resource Consents in the Resource Management Act 1991” (2008) 12 NZ Journal of Environmental Law 145.
RJ Bollard “The Resource Management regime and private property rights and interests – Is there an untoward tension between the two?” (2010)14 New Zealand Journal of Environmental Law 1.
Robert Garner “Political Ideology and the Legal Status of Animals” (2002) 8 Animal Law Compendium 78.
(b) Other
Alison Loveridge “Farm Practices and Animal Welfare” (2011) 26(1) New Zealand Sociology 89.
G Arnott, CP Ferris and NE O’Connell “Review: welfare of dairy cows in continuously housed and pasture-based production systems” (2017) 11(2) Animal 261.
Jes Lynning Harfeld and others “Seeing the Animal: On the Ethical Implications of De- animalization in Intensive Animal Production Systems” (2016) 29 J Agric Environ Ethics 407.
JM Siegford, W Powers and HG Grimes-Casey “Environmental Aspects of Ethical Animal Production” (2008) 87 Poultry Science 380.
Mickey Gjerris “Willed Blindness: A Discussion of Our Moral Shortcomings in Relation to Animals” (2015) 28 J Agric Environ Ethics 517.
Sara Shields and Geoffrey Orme Evans “The Impacts of Climate Change Mitigation Strategies on Animal Welfare” (2015) 5 Animals 361.
8 Papers
Temple Grandin “Animals Are Not Things” (paper presented at a discussion with Marc Hauser on whether animals should be property at the Harvard University Department of Psychology, 2002).
Virginia Williams “A New Zealand Commitment to Continuous Improvement in Animal Ethics Committee Decision-Making: Giving Operational Effect to Key Principles” (paper
presented to the 8th World Congress on Alternatives and Animal Use in the Life Sciences, Montreal, August 2011) 295.
9 Dissertations and Theses
Alec Dawson “How to Defend (and Attack) the Resource Management Act: The Principled Consequences of Reducing Public Participation in Environmental Decision-Making” (LLB (Hons) Dissertation, University of Otago, 2013).
Tom McKnight “Planning for Intensive Dairying in the Mackenzie Basin” (MPlan Thesis, University of Otago, 2013).
Vanessa James “Recognising animal sentience: Including minimum standards for opportunities to display normal patterns of behaviour in codes of welfare in New Zealand” (LLM Research Paper, Victoria University of Wellington, 2016).
10 Internet Resources
(a) Press Releases
David Carter “MAF to become Ministry for Primary Industries” (6 March 2012).
Gary Taylor “Environmental Defence Society’s court challenge” (26 February 2010) Mackenzie Guardians <http://mackenzieguardians.co.nz/2010/02/environmental-defence- societys-court-challenge>.
Nick Smith “Minister calls in Mackenzie Basin dairy discharge consents” (27 Jaunary 2010) beehive.govt.nz <www.beehive.govt.nz/release/minister-calls-mackenzie-basin-dairy- discharge-consents>.
Parliamentary Commissioner for the Environment “Minister urged to call in Mackenzie Basin consents” (14 January 2010) Scoop <www.scoop.co.nz/stories/PO1001/S00027.htm>.
SPCA New Zealand “SPCA says Craddock Farms colony cage farm should not be built” (25 November 2015) <www.rnzspca.org.nz/news/38-press-releases/304-spca-opposes-colony- cage-farm>.
Stop Craddock Farms “Egg farm owners get violent during peaceful protest” (29 March 2015) Scoop <www.scoop.co.nz/stories/PO1503/S00346/egg-farm-owners-get-violent- during-peaceful-protest.htm>.
(b) News Articles
Andrea Fox “Fonterra sticks by criticism of 'factory' plan” (9 December 2009) Stuff
<www.stuff.co.nz/business/farming/3145150/Fonterra-sticks-by-criticism-of-factory-plan>.
David Bruce “Change of plan on dairy farms” (19 March 2010) Otago Daily Times
<www.odt.co.nz/regions/north-otago/change-plan-dairy-farms>.
David Bruce “New bids for indoor dairying” (29 October 2010) Otago Daily Times
<www.odt.co.nz/regions/north-otago/new-bids-indoor-dairying>.
David Bruce “Resource consents for dairy farms” (12 December 2009) Otago Daily Times
<www.odt.co.nz/regions/north-otago/resource-consents-dairy-farms>.
Jarrod Booker “PM watches out for 'free-range' brand” (9 December 2009) NZ Herald
<www.nzherald.co.nz/nz/news/article.cfm?c_id=1&objectid=10614363&ref=rss>.
Paul Gorman “Cubicle dairy farms' fate may lie with Govt” (6 January 2010) Stuff
<www.stuff.co.nz/business/farming/3210439/Cubicle-dairy-farms-fate-may-lie-with- Govt>.
Sally Raw “Deadline looms for dairy plans” (14 Jaunary 2010) Otago Daily Times
<www.odt.co.nz/regions/north-otago/deadline-looms-dairy-plans>.
Tao Lin “Animal activists protest as Craddock Farms appeal begins” (26 November 2016) Stuff <www.stuff.co.nz/business/farming/74429523/animal-activists-protest-as-craddock- farms-appeal-begins>.
(c) Blog Posts
Claire Browning “National Policy Statement: wholly happy cows” (21 December 2009) Pundit < www.pundit.co.nz/content/national-policy-statement-wholly-happy-cows>.
Vernon Tava “‘Cubicle’ Dairy Farming: Factory farming by another name” (12 December 2009) The Solution <https://thesolution.org.nz/2009/12/12/cubicle-dairy- farming-factory-farming-by-another-name>.
Vernon Tava “Cubicle (Factory) Farming and Ministerial ‘Call-Ins’ of Resource Management Consents” (14 January 2010) The Solution
<https://thesolution.org.nz/2010/01/14/cubicle-factory-farming-and-ministerial-call-ins-of- resource>.
(d) Other
Ministry for Primary Industries “Our outcomes” (15 September 2015)
<www.mpi.govt.nz/about-mpi/our-strategy-2030-growing-and-protecting-new-zealand/our- outcomes>.
Russel Norman “Russel Norman questions John Key on factory farming” (8 December 2009) Green Party of Aotearoa New Zealand <https://home.greens.org.nz/oralquestions/russel- norman-questions-john-key-factory-farming>.
SPCA New Zealand “Ban Rodeo Cruelty” (2016) <www.rnzspca.org.nz/animal- welfare/campaigns>.
SPCA “Report Cruelty” <www.rnzspca.org.nz/help-advice/report-cruelty>.
11 Communications
Email from Charlie Derrick (Customer Services, Environment Canterbury) to the author regarding resource consents for dairy farming in the Upper Waitaki, and animal welfare being considered under the Resource Management Act 1991 (5 October 2017).
Email from Claire Browning (Freelance Policy Analyst) to the author regarding the relevance of animal welfare to the Resource Management Act 1991 (6 September 2017).
Email from Fred McLay (Director of Resource Management at the Taranaki District Council) to the author regarding animal welfare being considered under the Resource Management Act 1991 (8 September 2017).
Email from Sarah Gardner (Executive Director of Hazardous Incidents and Environmental Health at the New South Wales Environment Protection Authority) to the author regarding advice given by the Ministry for the Environment to the Hon Dr Nick Smith regarding Mackenzie Basin dairy farming resource consent applications (24 August 2017).
Interview with Andrea Speir, Manager of Legislation, Standards and International Team in the Ministry for Primary Industries Legal Team (the author, Wellington, 31 August 2017).
Letter from Bryan Jenkins (Chief Executive of Environment Canterbury) to Nick Smith (Minister for the Environment) regarding resource consent applications in the Mackenzie Basin (23 December 2009).
Letters from Anita Warnock (Consents Project Leader, Environment Canterbury) to Craig McKibbin (Mitchell Partnerships Environmental Consultants) regarding requests for further information on consent applications submitted by Five Rivers Limited, Southdown Holdings Limited and Williamson Holdings Limited (18 January 2010).
“I saw no horrors, no drug-testing laboratories, no factory farms, no abattoirs. Yet I am sure they are here. They must be.
They simply do not advertise themselves. They are all around us as I speak, only we do not, in a certain sense, know about them.”
- JM Coetzee The Lives of Animals (1999)
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