Following our recent High Court win, what do councils need to do for wetlands?
In a landmark February ruling, the High Court found that Environment Southland failed its legal duty to monitor and protect wetlands—clarifying that all councils in Aotearoa must take proactive, effective action to safeguard these critical ecosystems. The decision sets a powerful precedent, reinforcing that inadequate monitoring, enforcement, or resource excuses will not meet statutory obligations under the Resource Management Act.
Anna Sintenie, senior researcher at the Environmental Law Initiative
Council obligations to protect wetlands made clear by landmark court decision
By Anna Sintenie, senior researcher at the Environmental Law Initiative
Note: a version of this piece was published in the May 2025 issue of Local Government magazine.
Wetlands are a vital part of our natural infrastructure. They sink and store carbon, absorb floodwaters, and support unique and abundant biodiversity. They link up ecosystems from mountains to sea.
Despite their many benefits, wetlands continue to be lost - often silently and without consequence. Ninety six percent of drained freshwater wetlands in recent years have been converted to grassland, usually for dairy farming.
Over the past thirty years, Southland has been responsible for approximately half of all wetland loss in Aotearoa. After 2,709 hectares of wetland loss in Southland between 1996 and 2018, the high rate of loss was expected to continue while key root causes were unaddressed. The most recent data shows this is exactly what happened.
For over a decade, Environment Southland was aware of the significant wetland loss in its region. Reports commissioned by the Council documented ongoing destruction, yet the council failed to act decisively.
The Resource Management Act defines the obligations of councils to monitor wetlands, and to intervene when necessary to protect them.
In our – the Environmental Law Initiative – view, Environment Southland was consistently failing to deliver on these obligations and the consequences have been nationally significant. It meshed with what wetland experts were telling us; that a lack of monitoring and enforcement by councils in many parts of the country is “the weak link in the regulatory chain of wetland protection”.
Concerned about Environment Southland’s ineffectiveness to prevent wetland loss, we felt it was important to challenge the Council’s inaction, and so we submitted our case for judicial review to the High Court in April 2023.
The case was heard in the Christchurch High Court in October 2024, and the decision was released in February this year.
In her ruling, Justice Melanie Harland found that Environment Southland did not meet its obligations under section 35(2)(a) of the RMA to monitor the state of wetlands in the region since 2018. She ruled the council also failed to comply with section 35(2)(b), which requires monitoring the effectiveness of its wetland protection rules.
She also found that the Council had failed to take appropriate action, because it had failed in its monitoring obligations. Environment Southland’s minimal compliance monitoring, despite wetland loss, did not enable the council to carry out its functions in relation to wetlands and take appropriate action.
She also found that the council had not published the required five-yearly review under section 35(2A), which should have reported on its monitoring on effectiveness of its wetland protection measures.
In her words, Justice Harland said “I have found the Council failed to exercise its discretion in a way that promoted the RMA’s purpose and objectives, and derogated from its statutory duties.”
The Court highlighted that efforts by the Council to engage in community education, engagement initiatives and strengthening of scientific capabilities in relation to the wetlands, while ‘laudable’, did not fulfill these obligations.
The Court also found that ‘mapping’ efforts alone do not amount to monitoring.
Environment Southland has accepted the decision. While Southland has experienced the greatest wetland destruction, regions such as Northland, Waikato, and the West Coast have also seen significant losses.
The ruling sets a precedent for all regional councils in New Zealand. As a result, councils:
Must actively monitor wetlands: Councils must not only map wetlands but also conduct systematic monitoring. Monitoring must be sufficient for councils to carry out their RMA functions and take appropriate action in response to changes in wetland extent and health.
Must monitor, review and report effectiveness: Councils are legally required to assess whether methods in policies and plans are working and publicly report on their findings at least every five years.
Compliance monitoring must be sufficient: Compliance monitoring must enable the Council to fulfil their functions effectively, and ensure enforcement action is appropriate.
Cannot use resource constraints as an excuse: While Environment Southland cited limited resources, the court ruled that financial constraints do not absolve councils of their statutory duties.
Many councils already recognize the importance of wetlands and have taken steps to restore drained wetlands. However, as the court affirmed, the cost of restoring wetlands far outweighs the cost of protecting them. Councils must shift from a reactive approach to a purposeful strategy that includes comprehensive monitoring, transparent reporting, and robust enforcement.
With less than 10% of Aotearoa’s original wetlands remaining, this ruling could not have come at a more critical time. It is now up to councils to uphold their legal duties—and for the public to hold them accountable when they fail to do so.
