Fighting for the future of freshwater in Canterbury

freshwater

17 Jan

Written By Sarah Webster

ELI v Environment Canterbury

While the Court found that the RMA precluded our judicial review claim, it agreed with us - that the Council’s nitrate pollution rule was based on an error of law.

Freshwater is the most precious resource we have.

Canterbury holds the majority of Aotearoa's freshwater, but this public resource is significantly degraded because of intensive agriculture.

Freshwater in Canterbury is currently regulated under the Canterbury Land and Water Regional Plan under the Resource Management Act (RMA). In 2013 the Canterbury Regional Council (ECan) introduced new nutrient management rules for farming across the region, which included a new rule allowing resulting nitrogen pollution of freshwater.

We challenged this rule in court. In a December 2025 judgment, Justice Mander found that ECan failed to properly consider and apply section 70 of the Resource Management Act when it included Rule 5.63, which allowed nutrient discharges in the Canterbury Land & Water Regional Plan.

To have fulfilled their obligations under section 70, ECan should have been satisfied that significant adverse effects on aquatic life are not likely to arise.

Instead, ECan permitted nitrogen discharges without adequate evidence that they would not breach minimum pollution standards under the RMA. The rule removed a key safeguard and cemented the conditions for ongoing intensive farming even as nitrate pollution was already mounting.

Even though the rule was made 12 years ago, it remains in force and it is central to the nitrate crisis people across Canterbury are experiencing today.

The Court’s decision

Despite this finding of legal error, our judicial review was dismissed by the Court.

ECan argued that section 83 of the RMA prevents any challenge to a regional plan once it becomes operative, except through a very narrow, time‑limited process.

The Court agreed, saying that even though ECan had made an error, the plan was too old to challenge.

We argued that section 83 shouldn’t block challenges where a council failed to meet the basic legal requirements for making a rule, but the Court disagreed.

We are now considering whether to appeal the decision.

Why did we take this case?

Water is a public good. No one automatically has the right to pour contaminants or waste into water – or onto land, in circumstances where it may enter water. 

ECan should be guaranteeing communities have access to clean drinking water and protecting freshwater ecosystems.

Yet many of Canterbury’s aquifers and lowland waterways are already degraded, commonly by pollution allowed from large areas of intensive farming. Between 1990 and 2022, dairy cattle numbers in Canterbury increased ten-fold (1009 percent) from 113,000 to 1.3 million.

A major report by the Ministry for the Environment recently found significant management weaknesses by Environment Canterbury (ECan) and according to ECan’s own data, groundwater concentrations of nitrogen-nitrate are likely or very likely increasing at a majority of sites.

We took this case as we believe in strong protections for freshwater and freshwater ecosystems, for the people of Canterbury and for all of Aotearoa.